23,000,000 Shares MSCI INC. Class A Common Stock (Par Value $0.01 Per Share) UNDERWRITING AGREEMENT
Exhibit
1.1
EXECUTION
VERSION
23,000,000
Shares
Class
A Common Stock (Par Value $0.01 Per Share)
July 15,
2008
July 15,
2008
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
UBS
Securities LLC
Banc of
America Securities LLC
▇▇▇▇▇▇▇
▇▇▇▇▇ & Company, L.L.C.
▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (USA) LLC
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
c/o Morgan
▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and
Gentlemen:
▇▇▇▇▇▇
▇▇▇▇▇▇▇, a Delaware corporation (the “Selling Shareholder”), a
shareholder of MSCI Inc., a Delaware corporation (the “Company”), proposes to sell to
the several Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of
23,000,000 shares (the “Firm
Shares”) of the Company’s Class A Common Stock, par value $0.01 per share
(the “Class A Common
Stock”).
The
Selling Shareholder also proposes to sell to the several Underwriters not more
than an additional 3,450,000 shares of Class A Common Stock (the “Additional Shares”) if and to
the extent that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as a manager of the
offering, shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such shares of Class A Common Stock granted to the
Underwriters in Section 3 hereof. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the “Shares.” The shares of Class A
Common Stock and Class B Common Stock, par value $0.01 per share, of the Company
to be outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to collectively as the “Common Stock.”
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement, including a prospectus, relating to the Shares. The
registration statement as amended at the time it becomes effective, including
the information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act of
1933, as amended (the “Securities Act”), is
hereinafter referred to as the “Registration Statement”; the
prospectus in the form first used to confirm sales of Shares (or in the form
first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter
referred to as the “Prospectus.” If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration
Statement”), then any reference herein to the term “Registration Statement” shall
be deemed to include such Rule 462 Registration Statement.
For
purposes of this Agreement, “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means
the preliminary prospectus together with the free writing prospectuses, if any,
and the term sheets communicated pursuant to Rule 134 under the Securities
Act, if any, each identified in Schedule II hereto, and “broadly available road show”
means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the
Securities Act that has been made available without restriction to any
person. As used herein, the terms “Registration Statement,”
“preliminary
prospectus,” “Time of
Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein.
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated has agreed to reserve a portion of the Shares to
be purchased by it under this Agreement for sale to the Company’s directors,
officers, employees and business associates and other parties related to the
Company (collectively, “Participants”), as set forth
in the Prospectus under the heading “Underwriters” (the “Directed Share
Program”). The Shares to be sold by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and its affiliates pursuant to the Directed Share Program are
referred to hereinafter as the “Directed
Shares”. Any Directed Shares not orally confirmed for purchase
by any Participant by the end of the business day on which this Agreement is
executed will be offered to the public by the Underwriters as set forth in the
Prospectus.
1. Representations and Warranties of
the Company. The Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the Commission.
(b) (i)
The Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each
sale of the Shares in connection with the offering when the Prospectus is not
yet available to prospective purchasers and at the Closing Date (as defined in
Section 5), the Time of Sale Prospectus, as then amended or supplemented by
the Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
(iv) each broadly available road show, if any, when considered together with the
Time of Sale Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading and
(v) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and
2
warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or on behalf of or used
or referred to by the Company complies or will comply in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule II hereto, and electronic road
shows, if any, each furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) The
authorized capital stock of the Company will, on the Closing Date (as defined in
Section 5), conform as to legal matters to the description thereof
contained in each of the Time of Sale Prospectus and the
Prospectus.
3
(h) The
shares of Common Stock (including the Shares to be sold by the Selling
Shareholder) have been duly authorized and are validly issued, fully paid and
non-assessable.
(i)
The execution and delivery by the Company of, and the performance by the
Company of its obligations under, this Agreement will not contravene (i) any
provision of applicable law, (ii) any provision of the certificate of
incorporation or by-laws of the Company, (iii) any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, except, in the case of clauses (i) and (iv) above,
where such contravention would not, singly or in the aggregate, have a material
adverse effect on the Company or on the power and ability of the Company to
perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus. No consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
this Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares
and except for any such consents, approvals, authorizations, orders or
qualifications the absence of which would not, singly or in the aggregate, have
a material adverse effect on the Company or on the power and ability of the
Company to perform its obligations under this Agreement or to consummate the
transactions contemplated by the Time of Sale Prospectus.
(j)
There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of Sale
Prospectus.
(k) There
are no legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and
proceedings that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are not so
described; and there are no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
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(l)
Each preliminary prospectus filed as part of the registration statement as
originally filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder.
(m) The
Company is not required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended.
(n) The
Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(o) There
are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) Except
as described in the Time of Sale Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require the
Company to include such securities with the Shares registered pursuant to the
Registration Statement.
(q) Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and
its subsidiaries have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction; (ii) the Company has
not purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short term debt or long term debt of the
Company and its subsidiaries, except in each case as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus,
respectively.
(r) The
Company and its subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them which is material to the business of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances and defects except such as
are described in the Time of Sale Prospectus or such as do not materially affect
the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting
5
and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case except as described in the Time of
Sale Prospectus.
(s) The
Company and its subsidiaries own or possess or, to the knowledge of the Company,
it or its subsidiaries can acquire on reasonable terms, all material patents,
patent rights, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any
of the foregoing, except in each case which, singly or in the aggregate, would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(t) No
material labor dispute with the employees of the Company or any of its
subsidiaries exists, except as described in the Time of Sale Prospectus, or, to
the knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors that could have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(u) The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; neither
the Company nor any of its subsidiaries has been refused any insurance coverage
sought or applied for; and neither the Company nor any of its subsidiaries has
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, except as described in the Time of Sale
Prospectus.
(v) The
Company and its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except as would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole, and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a material
adverse effect on the Company and its subsidiaries, taken as a whole, except as
described in the Time of Sale Prospectus.
(w) The
Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in
6
conformity
with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. Except as described in the Time of Sale Prospectus,
since the end of the Company’s most recent audited fiscal year, there has been
(i) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (ii) no change in the Company’s
internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(x) Except
as described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the
date hereof, including any sales pursuant to Rule 144A under, or Regulation D or
S of, the Securities Act, other than shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee compensation plans or
pursuant to outstanding options, rights or warrants.
(y) Neither
the Company nor any of its subsidiaries is required to be registered, licensed
or qualified pursuant to the Investment Advisers Act of 1940, as amended, and
the rules and regulations promulgated thereunder.
(z) Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), that is maintained, administered or
contributed to by the Company or any of its affiliates for employees or former
employees of the Company has been maintained in all material respects in
compliance with its terms and the requirements of any applicable statutes,
orders, rules and regulations, including ERISA and the Internal Revenue Code of
1986, as amended (the “Code”). No prohibited transaction, within
the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any such plan excluding transactions effected pursuant
to a statutory or administrative exemption and transactions with respect to
which no material liability to the Company has occurred or could reasonably be
expected to occur, either individually or in the aggregate; and for each such
plan that is subject to the funding rules of Section 412 of the Code or
Section 302 of ERISA, no “accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not waived, and the
fair market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions.
(aa) The
historical consolidated financial statements (including the related notes) set
forth in the Registration Statement, the Time of Sale Prospectus and the
Prospectus comply in all material respects with the requirements of the
Securities Act and present fairly in all material respects the consolidated
financial condition, the consolidated results of operations and the consolidated
changes in cash flows of the entities purported to be shown thereby in
conformity with generally accepted accounting principles; and the summary and
selected historical financial data set forth in the
7
Registration
Statement, the Time of Sale Prospectus and the Prospectus present fairly in all
material respects the information shown therein and have been compiled on a
basis consistent in all material respects with that of the audited consolidated
financial statements set forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus or the unaudited condensed consolidated financial
statements, as the case may be.
(bb) Deloitte
& Touche LLP, whose reports are filed with the Commission as a part of the
Registration Statement, is and, during the periods covered by their reports, was
an independent registered public accounting firm as required by the Securities
Act and the published rules and regulations thereunder adopted by the Commission
and the Public Company Accounting Oversight Board (United States).
(cc) The
statistical and market and industry-related data included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, other than the data
furnished to the Company by the Underwriters specifically for use therein, are
based on or derived from sources that the Company reasonably believes to be
reliable and accurate in all material respects.
(dd) Neither
the Company nor any of its subsidiaries is (i) in violation of its certificate
of incorporation or by-laws or (ii) in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, credit agreement
or other agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject, except for any default
described in clause (ii) which would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(ee) The
Company and each of its subsidiaries (to the extent not included in the
consolidated tax returns of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the ordinary course of business)
have filed all federal, state, local and foreign tax returns required to be
filed through the date of this Agreement or have requested extensions thereof
(except for cases in which the failure to file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole) and have paid all
taxes required to be paid thereon, and, except as currently being contested in
good faith and for which reserves required by generally accepted accounting
principles have been created in the financial statements of the Company, no tax
deficiency has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company nor any of its subsidiaries
have any notice or knowledge of any tax deficiency which could reasonably be
expected to be determined adversely to the Company or its subsidiaries and which
could reasonably be expected to have) a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(ff) The
Company and its subsidiaries have not, nor, to the knowledge of the Company, has
any director, officer, agent, employee or other person associated with or acting
on behalf of the Company or its subsidiaries, (A) taken any action, directly or
indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the
8
“FCPA”) or (B) used any of the
funds of the Company or its subsidiaries with an unlawful purpose or in an
unlawful manner for any contribution, gift, entertainment or other expense
relating to political activity or as a means to permit the operation of the
Company or any of its subsidiaries or to obtain any concession in contravention
of any applicable law, made any direct or indirect payment to any foreign or
domestic government official (or “Foreign Official”, as such
term is defined in the FCPA) or employee in contravention of any applicable law
from any of the funds of the Company or its subsidiaries, or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment in
contravention of any applicable law and (C) the Company, and to the knowledge of
the Company, its affiliates, have conducted their businesses in compliance with
the FCPA and operate under a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ program designed to ensure, and
which are reasonably expected to continue to ensure, continued compliance
therewith.
(gg) Neither
the Company, nor any of its subsidiaries, or to the knowledge of the Company,
any director, officer, agent, employee or controlled affiliate of the Company or
its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”).
(hh) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the money laundering statutes of all jurisdictions, the rules
and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(ii) The
Registration Statement, the Prospectus, the Time of Sale Prospectus and any
preliminary prospectus comply, and any amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus, the Time of Sale Prospectus or any preliminary prospectus,
as amended or supplemented, if applicable, are distributed in connection with
the Directed Share Program.
(jj) No
consent, approval, authorization or order of, or qualification with, any
governmental body or agency, other than those obtained, is required in
connection with the offering of the Directed Shares in any jurisdiction where
the Directed Shares are being offered.
(kk)
The Company has not offered, or caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated to
offer, Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer’s or supplier’s level or type of business with the
Company, or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
9
2. Representations and Warranties of
the Selling Shareholder. The Selling Shareholder represents
and warrants to and agrees with each of the Underwriters that:
(a) This
Agreement has been duly authorized, executed and delivered by or on behalf of
the Selling Shareholder.
(b) The
execution and delivery by the Selling Shareholder of, and the performance by the
Selling Shareholder of its obligations under, this Agreement will not contravene
any provision of applicable law, or the certificate of incorporation or by-laws
of the Selling Shareholder, or any agreement or other instrument binding upon
the Selling Shareholder or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Selling Shareholder, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Selling
Shareholder of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(c) The
Selling Shareholder has, and on the Closing Date will have, valid title to, or a
valid “security entitlement” within the meaning of Section 8-501 of the New
York Uniform Commercial Code in respect of, the Shares to be sold by the Selling
Shareholder free and clear of all security interests, claims, liens, equities or
other encumbrances and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement and to sell, transfer and
deliver the Shares to be sold by the Selling Shareholder or a security
entitlement in respect of such Shares.
(d) The
Selling Shareholder is not prompted by any information concerning the Company or
its subsidiaries which is not set forth in the Time of Sale Prospectus to sell
its Shares pursuant to this Agreement.
(e) (1)
the Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (2) the Time of Sale
Prospectus does not, and at the time of each sale of the Shares in connection
with the offering when the Prospectus is not yet available to prospective
purchasers and at the Closing Date (as defined in Section 5), the Time of
Sale Prospectus, as then amended or supplemented by the Company, if applicable,
will not, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (3) each broadly
available road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and (4) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the
representations and warranties set forth in this paragraph 2(a)(v) are limited
to statements or omissions made in reliance upon information relating to the
Selling Shareholder furnished to the Company in writing by the
10
Selling
Shareholder expressly for use in the Registration Statement, the Time of Sale
Prospectus, the Prospectus or any amendments or supplements
thereto.
(f) The
Selling Shareholder has no reason to believe that the representations and
warranties of the Company contained in Section 1 are not true and
correct.
3. Agreements to Sell and
Purchase. The Selling Shareholder hereby agrees to sell to the
several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Selling Shareholder at $30.80 a share (the “Purchase Price”) the number of
Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter.
On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Selling Shareholder agrees to sell to
the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to 3,450,000 Additional Shares
at the Purchase Price. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated may
exercise this right on behalf of the Underwriters in whole or from time to time
in part by giving written notice not later than 30 days after the date of this
Agreement. Any exercise notice shall specify the number of Additional
Shares to be purchased by the Underwriters and the date on which such shares are
to be purchased. Each purchase date must be at least one business day
after the written notice is given and may not be earlier than the Closing Date
nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in
Section 5 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. On each day, if any,
that Additional Shares are to be purchased (an “Option Closing Date”), each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
Each of
the Company and the Selling Shareholder hereby agrees that, without the prior
written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 60 days after the date
of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise.
The
restrictions contained in the preceding paragraph shall not apply to (a) the
Shares to be sold hereunder, (b) the issuance of shares of Common Stock upon the
exercise of options granted under employee stock option plans existing as of the
date hereof, (c) grants of employee stock options or restricted stock in
accordance with the terms of a plan in effect on the date hereof, (d)
transactions by the Selling Shareholder relating to shares of Common Stock or
other
11
securities
acquired in open market transactions after the completion of the offering of the
Shares, provided that no filing under Section 16(a) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), shall be
required or shall be voluntarily made in connection with subsequent sales of
Common Stock or other securities acquired in such open market transactions, and
(e) the issuance by the Company of up to 10,006,989 shares of Common Stock (or
options, warrants or convertible securities relating to shares of Common Stock)
in connection with bona fide mergers or acquisitions, joint ventures, commercial
relationships or other strategic transactions, provided that the acquiree of
any such shares of Common Stock (or options, warrants or convertible securities
relating to shares of Common Stock) so issued enters into an agreement in the
form of Exhibit A hereto with respect to such shares of Common Stock (or
options, warrants or convertible securities relating to shares of Common Stock)
for the remainder of the 60-day restricted period and possible extension of such
period described below in this paragraph. Notwithstanding the
foregoing, if (1) during the last 17 days of the 60-day restricted period the
Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior to the expiration of the 60-day restricted
period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 60-day restricted period, the
restrictions imposed by this Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event. The
Company shall promptly notify ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated of any
earnings release, news or event that may give rise to an extension of the
initial 60-day restricted period.
4. Terms of Public
Offering. Each of the Company and the Selling Shareholder are
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is
advisable. Each of the Company and the Selling Shareholder are
further advised by you that the Shares are to be offered to the public initially
at $32.00 a share (the “Public
Offering Price”) and to certain dealers selected by you at a price that
represents a concession not in excess of $0.72 a share under the Public Offering
Price.
5. Payment and Delivery. Payment
for the Firm Shares shall be made to the Selling Shareholder in Federal or other
funds immediately available in New York City against delivery of such Firm
Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on July 21, 2008, or at such other time on the same or such
other date, not later than July 28, 2008, as shall be designated in writing by
you. The time and date of such payment are hereinafter referred to as
the “Closing
Date.”
Payment
for any Additional Shares shall be made to the Selling Shareholder in Federal or
other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the corresponding
notice described in Section 3 or at such other time on the same or on such
other date, in any event not later than August 28, 2008, as shall be designated
in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
The Firm
Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date or the applicable Option Closing Date, as the case
may be. The Firm Shares and
12
Additional
Shares shall be delivered to you on the Closing Date or an Option Closing Date,
as the case may be, for the respective accounts of the several Underwriters,
with any transfer taxes payable in connection with the transfer of the Shares to
the Underwriters duly paid, against payment of the Purchase Price
therefor.
6. Conditions to the Underwriters’
Obligations. The obligations of the Selling Shareholder to
sell the Shares to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the Firm Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 4:30 p.m. (New York City time) on the date
hereof.
The
several obligations of the Underwriters are subject to the following further
conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the securities of the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of their
respective subsidiaries by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus as of the date of this Agreement that,
in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated’s judgment, is material and adverse and
that makes it, in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated’s judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date:
(i) a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 6(a)(i) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing
Date. The executive officer signing and delivering such certificate
may rely upon the best of his or her knowledge as to proceedings threatened;
and
(ii) a
certificate, dated the Closing Date and signed by an executive officer of the
Selling Shareholder, to the effect that the representations and warranties of
the Selling Shareholder contained in this Agreement are true and
13
correct as
of the Closing Date; and that the Selling Shareholder has complied with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date.
(c) The
Underwriters shall have received on the Closing Date opinions, each dated the
Closing Date, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, outside counsel for the Company,
substantially in the form attached as Exhibits B-1 and B-2 hereto.
(d) The
Underwriters shall have received on the Closing Date an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company,
substantially in the form attached as Exhibit C hereto.
(e) The
Underwriters shall have received on the Closing Date an opinion, dated the
Closing Date, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling Shareholder,
substantially in the form attached as Exhibit D hereto.
(f) The
Underwriters shall have received on the Closing Date an opinion or opinions of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated
the Closing Date, covering such matters as the Underwriters may reasonably
request.
The
opinions described in Sections 6(c), 6(d) and 6(e) above shall be rendered to
the Underwriters at the request of the Company or the Selling Shareholder as the
case may be, and shall so state therein.
(g) The
Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to the Underwriters, from Deloitte & Touche
LLP, independent public accountants, containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off date” not
earlier than the date hereof.
(h) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and each officer and director of the Company set forth on
Schedule III hereto, relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing
Date.
The
several obligations of the Underwriters to purchase Additional Shares hereunder
are subject to the delivery to you on the applicable Option Closing Date of such
documents as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Additional Shares to be sold on such Option Closing Date and other
matters related to the issuance of such Additional Shares.
14
7. Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a) To
furnish to you, without charge, 8 signed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and to
furnish to you in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this Agreement and
during the period mentioned in Section 7(e) or 7(f) below, as many copies
of the Time of Sale Prospectus, the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared by
or on behalf of, used by, or referred to by the Company and not to use or refer
to any proposed free writing prospectus to which you reasonably
object.
(d) Not
to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to file
thereunder.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy the Shares at
a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then on
file, or if, in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of
Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Time of Sale Prospectus is delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If,
during such period after the first date of the public offering of the Shares as
in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof
15
the notice
referred to in Rule 173(a) under the Securities Act) is required by law to be
delivered in connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus (or in lieu thereof the notice referred
to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on behalf of
the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable
law.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue
Sky laws of such jurisdictions as you shall reasonably request; provided that in
no event shall the Company or any of its subsidiaries be obligated to qualify to
do business as a foreign corporation in any jurisdiction where it is not already
so qualified, to file any general consent to service of process, or to subject
itself to taxation in any jurisdiction where it is not already subject to
taxation.
(h) To
make generally available to the Company’s security holders and to you as soon as
practicable an earning statement (which need not be audited) covering a period
of at least twelve months beginning with the first fiscal quarter of the Company
occurring after the date of this Agreement which shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder; provided that such delivery
requirement shall be deemed met by the Company’s compliance with its reporting
requirements pursuant to the Exchange Act and the rules and regulations
promulgated by the Commission thereunder.
(i)
To comply with all applicable securities and other laws, rules and
regulations in each jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program.
8. Expenses. Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company agrees to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company’s counsel,
the Company’s accountants and counsel for the Selling Shareholder in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
the Prospectus, any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and
16
dealers,
in the quantities hereinabove specified, (ii) all costs and expenses related to
the transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the reasonable cost of printing
or producing any Blue Sky or Legal Investment memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale under state
securities laws as provided in Section 7(g) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Shares by the FINRA, (v) all
costs and expenses incident to listing the Shares on the New York Stock
Exchange, (vi) the cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar or depositary, (viii)
half of the costs and expenses of the Company relating to investor presentations
on any “road show” undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, and travel and lodging expenses of the
representatives and officers of the Company and any such consultants, except
that the Underwriters will pay all of the cost of any aircraft chartered in
connection with the road show, (ix) the document production charges and expenses
associated with printing this Agreement, (x) all expenses in connection with any
offer and sale of the Shares outside of the United States, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with offers and sales outside of the United States, (xi) all fees and
disbursements of counsel incurred by the Underwriters in connection with the
Directed Share Program and stamp duties, similar taxes or duties or other taxes,
if any, incurred by the Underwriters in connection with the Directed Share
Program and (xii) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as
provided in this Section, Section 10 entitled “Indemnity and Contribution,”
Section 11 entitled “Directed Share Program Indemnification” and the last
paragraph of Section 13 below, the Underwriters will pay all of their costs
and expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Shares by them, any advertising expenses
connected with any offers they may make and all of the cost of any aircraft
chartered in connection with any road show and half of the other costs and
expenses relating to any road show as described in (viii) above.
9. Covenants of the
Underwriters. Each Underwriter severally covenants with the
Company not to take any action that would result in the Company being required
to file with the Commission under Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of such Underwriter that otherwise
would not be required to be filed by the Company thereunder, but for the action
of the Underwriter.
10. Indemnity and
Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, each person, if
any, who controls any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, and each affiliate
of
17
any
Underwriter within the meaning of Rule 405 under the Securities Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule
433(h) under the Securities Act, any Company information that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act,
or the Prospectus or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(b) The
Selling Shareholder agrees to indemnify and hold harmless each Underwriter, each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company
information that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act, or the Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to the Selling Shareholder furnished to the Company in writing by the
Selling Shareholder expressly for use in the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus or the Prospectus or any amendment or supplement
thereto.
(c) The
Selling Shareholder agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission
or
18
alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to the Selling
Shareholder furnished in writing by or on behalf of the Selling Shareholder
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto.
(d) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Selling Shareholder, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Company or the Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus,
the Time of Sale Prospectus, any issuer free writing prospectus as defined in
Rule 433(h) under the Securities Act, any Company information that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act, or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus or the Prospectus or any amendment or supplement
thereto.
(e) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section 10(a), 10(b), 10(c) or 10(d), such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (i)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the
19
Exchange
Act or who are affiliates of any Underwriter within the meaning of Rule 405
under the Securities Act, (ii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section, (iii) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Selling Shareholder and all persons, if any, who control the Selling
Shareholder within the meaning of either such Section, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons and
affiliates of any Underwriters, such firm shall be designated in writing by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the
Company. In the case of any such separate firm for the Selling
Shareholder and such control persons of the Selling Shareholder, such firm shall
be designated in writing by the Selling Shareholder. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days’ prior written notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(f)
To the extent the indemnification provided for in Section 10(a),
10(b), 10(c) or 10(d) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 10(f)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 10(f)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well
20
as any
other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholder on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by the
Selling Shareholder and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company and the Selling Shareholder
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholder or the
Underwriters, as the case may be, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters’ respective obligations to contribute
pursuant to this Section 10 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint. The
liability of the Selling Shareholder under the contribution agreement contained
in this paragraph shall be limited to an amount equal to the aggregate Public
Offering Price of the Shares sold by the Selling Shareholder under this
Agreement.
(g) Each
of the Company, the Selling Shareholder and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 10 were
determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 10(f). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 10(f) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this
Section 10 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(h) The
indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company and the Selling
Shareholder contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter, the Selling Shareholder or
any person controlling the Selling
21
Shareholder,
or the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares.
11. Directed Share Program
Indemnification.
(a) The
Company agrees to indemnify and hold harmless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, each person, if any, who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act and each affiliate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated within the meaning of Rule 405 of the Securities Act
(“▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities”) from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) (i) caused by any untrue statement or alleged untrue statement
of a material fact contained in any material prepared by or with the consent of
the Company for distribution to Participants in connection with the Directed
Share Program or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) caused by the failure of any Participant to pay for
and accept delivery of Directed Shares that the Participant agreed to purchase;
or (iii) related to, arising out of, or in connection with the Directed Share
Program, other than losses, claims, damages or liabilities (or expenses relating
thereto) that are finally judicially determined to have resulted from the bad
faith, willful misconduct or gross negligence of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities.
(b) In
case any proceeding (including any governmental investigation) shall be
instituted involving any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity in respect of which indemnity may
be sought pursuant to Section 11(a), the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity seeking
indemnity, shall promptly notify the Company in writing and the Company, upon
request of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity, shall retain counsel reasonably
satisfactory to the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity to represent the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity
and any others the Company may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity unless (i) the Company shall have agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Company and the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The Company shall not, in respect of the legal expenses of the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities. Any such separate firm for the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities
shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated. The Company shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Company agrees to
indemnify the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
22
Entity
shall have requested the Company to reimburse it for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
Company agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by the Company of the aforesaid request, (ii) the
Company shall not have reimbursed the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity in accordance with
such request prior to the date of such settlement and (iii) such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entity shall have given the Company at least 30 days prior written notice of its
intention to settle. The Company shall not, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, effect any settlement of any
pending or threatened proceeding in respect of which any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity
is or could have been a party and indemnity could have been sought hereunder by
such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity, unless such settlement includes an unconditional
release of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities from all liability on claims that are the
subject matter of such proceeding.
(c) To
the extent the indemnification provided for in Section 11(a) is unavailable
to a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then the Company in lieu of
indemnifying the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity thereunder, shall contribute to the
amount paid or payable by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on the other hand from the offering of the Directed
Shares or (ii) if the allocation provided by clause 11(c)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 11(c)(i) above but also
the relative fault of the Company on the one hand and of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities on the other hand in connection with any statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on the other hand in
connection with the offering of the Directed Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Directed Shares (before deducting expenses) and the total underwriting discounts
and commissions received by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities for the Directed Shares,
bear to the aggregate Public Offering Price of the Directed
Shares. If the loss, claim, damage or liability is caused by an
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact, the relative fault of the Company on the one
hand and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
or the omission or alleged omission relates to information supplied by the
Company or by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(d) The
Company and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities agree that it would not be just or
equitable if contribution pursuant to this Section 11 were determined by
pro rata allocation
(even if the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 11(c). The
amount paid or payable by the ▇▇▇▇▇▇
23
▇▇▇▇▇▇▇
Entities as a result of the losses, claims, damages and liabilities referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
Section 11, no ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall be required to contribute any
amount in excess of the amount by which the total price at which the Directed
Shares distributed to the public were offered to the public exceeds the amount
of any damages that such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity has otherwise been required to
pay. The remedies provided for in this Section 11 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(e) The
indemnity and contribution provisions contained in this Section 11 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entity or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Directed Shares.
12. Termination. The
Underwriters may terminate this Agreement by notice given by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated to the Company, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on, or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over the counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated’s judgment, impracticable or inadvisable to proceed with the offer,
sale or delivery of the Shares on the terms and in the manner contemplated in
the Time of Sale Prospectus or the Prospectus.
13. Effectiveness; Defaulting
Underwriters. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
If, on the
Closing Date or an Option Closing Date, as the case may be, any one or more of
the Underwriters shall fail or refuse to purchase Shares that it has or they
have agreed to purchase hereunder on such date, and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate number of the
Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule I bears to the aggregate number of Firm
Shares set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided
that in no event shall the number of Shares
24
that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 13 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If,
on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased on such date, and arrangements satisfactory to you, the
Company and the Selling Shareholder for the purchase of such Firm Shares are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company, or the
Selling Shareholder. In any such case either you or the Selling
Shareholder shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in
any other documents or arrangements may be effected. If, on an Option
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If this
Agreement shall be terminated by the Underwriters, or any of them, because of
any failure or refusal on the part of the Company or the Selling Shareholder to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or the Selling Shareholder shall be unable to
perform its obligations under this Agreement, the Company and the Selling
Shareholder will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
14. Entire
Agreement.
(a) This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate
to the offering of the Shares, represents the entire agreement between the
Company and the Selling Shareholder, on the one hand, and the Underwriters, on
the other, with respect to the preparation of any preliminary prospectus, the
Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the
purchase and sale of the Shares.
(b) The
Company acknowledges that in connection with the offering of the
Shares: (i) the Underwriters have acted at arms length, are not
agents of, and owe no fiduciary duties to, the Company or any other person, (ii)
the Underwriters owe the Company only those duties and obligations set forth in
this Agreement and prior written agreements (to the extent not superseded by
this Agreement), if any, and (iii) the Underwriters may have interests that
differ from those of the Company. The Company waives to the full
extent permitted by applicable law any claims it may have against the
Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
25
15. Counterparts. This
Agreement may be signed in two or more counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
16. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York. The
Company is registered to do
business in the State of New York as NY MSCI.
17. Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
18. Notices. All
communications hereunder shall be in writing and effective only upon receipt and
if to the Underwriters shall be delivered, mailed or sent to you in care of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Equity Syndicate Desk, with a copy to the Legal Department; if to the
Company shall be delivered, mailed or sent to MSCI Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel, and if to
the Selling Shareholder, shall be delivered, mailed or sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
[Remainder of this page intentionally
left blank]
26
|
Very
truly yours,
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: Chief Financial Officer | |||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|||
|
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: Chief Financial Officer | |||
E-1
Accepted
as of the date hereof
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
UBS
Securities LLC
Banc of
America Securities LLC
▇▇▇▇▇▇▇
▇▇▇▇▇ & Company, L.L.C.
▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (USA) LLC
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Acting
severally on behalf of themselves and the several
Underwriters
named in Schedule I hereto
By: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Managing Director | ||
By: UBS
Securities LLC
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ | ||
| Title: | Managing Director | ||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: | Associate Director | ||
2