TURNER INVESTMENTS, INC. Class A Common Stock Underwriting Agreement
Exhibit 1.1
▇▇▇▇▇▇ INVESTMENTS, INC.
Class A Common Stock
[•], 2008
▇▇▇▇▇▇▇, Sachs & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As representative of the several Underwriters
named in Schedule I hereto,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Investments, Inc., a Pennsylvania corporation (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) an aggregate of [•] shares (the “Firm Shares”) and, at the election of
the Underwriters, up to [•] additional shares (the “Optional Shares”) of Class A Common Stock, par
value $0.01 per share (“Stock”) of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively called the
“Shares”).
The Underwriters, through Citigroup Global Markets Inc. (the “DSP Manager”), have agreed to
reserve 10% of the Firm Shares (such shares to be included in the number set forth opposite the DSP
Manager’s name on Schedule I of this agreement) to be purchased by them under this Agreement for
sale to the Company’s directors, officers, employees and business associates and other parties
related to the Company (collectively, the “Participants”), as set forth in the Pricing Prospectus
(as defined herein) under the heading “Underwriting” (the “Directed Share Program”). The Firm
Shares to be sold pursuant to the Directed Share Program (the “Directed Shares”) will be sold by
the DSP Manager pursuant to this Agreement at the public offering price. Any Directed Shares not
orally confirmed for purchase by any Participant by 8:00 a.m. New York City time on the business
day following the date on which this Agreement is executed will be offered to the public by the
Underwriters as set forth in the Prospectus (as defined herein).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-146135) (the “Initial Registration
Statement”) in respect of the Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to you, have been
declared effective by the Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a “Rule 462(b) Registration Statement”), filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration Statement has heretofore been
filed with the Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the
time it was declared effective, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective, are hereinafter collectively called the “Registration Statement”;
the Preliminary Prospectus relating to the Shares that was included in the Registration Statement
immediately prior to the Applicable Time (as defined in Section 1(c) hereof) is hereinafter called
the “Pricing Prospectus”; such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the “Prospectus”; and any “issuer free writing prospectus” as
defined in Rule 433 under the Act relating to the Shares is hereinafter called an “Issuer Free
Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an 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, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representative expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is [•] p.m. (New York City
time) on the date of this Agreement. The Pricing Prospectus as supplemented by those documents
listed on Schedule II(b) hereto and the pricing information set forth on Schedule II(c) hereto
(collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing
Prospectus listed on Schedule II(a) hereto does not conflict with the information contained in
the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of
the Applicable Time, did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representative expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder, and do
not and will not, as of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto,
contain an 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; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an Underwriter
through the Representative expressly for use therein;
(e) Neither the Company nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included in the Pricing Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Pricing Prospectus, there has not
been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position, shareholders’ equity or results
of operations of the Company and its subsidiaries (a “Material Adverse Effect”), otherwise than as
set forth or contemplated in the Pricing Prospectus;
(f) 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, in each case free
and clear of all liens, encumbrances and defects except such as are described in the Pricing
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 and enforceable leases, except where the
failure to do so would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect;
(g) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the Commonwealth of Pennsylvania, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Pricing Prospectus,
and has been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except to the extent that the failure to
be so qualified in any such jurisdiction would not, individually or in the aggregate, result in a
Material Adverse Effect; and each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its jurisdiction of
incorporation;
(h) The Company has an authorized capitalization as set forth in the Pricing Prospectus and
all of the issued shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and conform to the description of the Stock contained
in the Pricing Prospectus and Prospectus; and all of the issued shares of capital stock or
membership units of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors’ qualifying shares and except
as described in the Pricing Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(i) The Shares have been duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued and fully paid and
non-assessable and free and clear of all liens, encumbrances, equities or claims and will conform
to the description of the Stock contained in the Pricing Prospectus;
(j) The issue and sale of the Shares and the compliance by the Company with this Agreement and
the consummation of the transactions herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under: (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, (ii) the amended and restated certificate of incorporation or amended and restated by-laws
of the Company or (iii) any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries or any of their
properties, except in the case of clauses (i) or (iii) for such conflicts, breaches, defaults or
violations that would not, individually or in the aggregate, materially affect the value of the
shares, the ability of the Company or the Underwriters to consummate the transactions contemplated
hereby or reasonably be expected to have a Material Adverse Effect; and no consent, approval,
authorization, order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except the registration under the Act of the
Shares and such consents, approvals,
authorizations, registrations or qualifications as have already been obtained or as may be
required under state securities or Blue Sky laws in connection with the purchase and distribution
of the Shares by the Underwriters;
(k) 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 the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except in the case of clause (ii) for such violations or defaults
which would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(l) 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 to the extent that the failure to possess such certificates,
authorizations and permits would not, individually or in the aggregate, result in a Material
Adverse Effect, 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;
(m) This Agreement has been duly authorized, executed and delivered by the Company;
(n) Neither the Company nor any of its subsidiaries has taken, directly or indirectly, any
action which was designed to or which has constituted or which would reasonably be expected to
cause or result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(o) The statements set forth in the Pricing Prospectus and Prospectus under the caption
“Description of Capital Stock”, insofar as they purport to constitute a summary of the terms of the
Stock, are accurate, complete and fair. The statements set forth in the Pricing Prospectus and
Prospectus under the caption “United States Federal Income Tax Considerations”, insofar as they
represent legal conclusions or statements of U.S. Federal income tax law, subject to the
limitations and conditions set forth therein, provide a fair summary of the legal matters referred
to therein in all material respects;
(p) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(q) Other than as set forth in the Pricing 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 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;
(r) Other than as set forth in the Pricing Prospectus, there are no contracts, agreements or
understandings between the Company and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in
connection with the transactions contemplated hereby;
(s) Except as disclosed in the Pricing Prospectus and the Prospectus, each of the Company and
its Subsidiaries maintains insurance covering its properties, operations, personnel and businesses
which insures against such losses and risks as are adequate in accordance with its reasonable
business judgment to protect the Company and its Subsidiaries and their businesses; 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;
(t) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an “investment company”, as such term is defined
in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(u) At the time of filing the Initial Registration Statement, the Company was not and is not
an “ineligible issuer,” as defined under Rule 405 under the Act;
(v) Ernst & Young LLP (“Ernst & Young”), who have certified certain financial statements of
the Company and its subsidiaries, are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(w) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The Company’s internal
control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(x) Since the date of the latest audited financial statements included in the Pricing
Prospectus, there has been 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;
(y) The Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; the
Company and its subsidiaries are not aware of any reason that they will not comply with Sections
302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), and the rules and
regulations promulgated in connection with Section 404 related to certifications, when such
certifications are first required to be given; such disclosure controls and procedures have been
designed to ensure that material information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are effective;
(z) Neither the Company nor any of its subsidiaries, directors or officers, nor to the
knowledge of the Company, any agent, employee of the Company or affiliate acting on behalf of the
Company or any of its subsidiaries is aware of or has 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 “FCPA”), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and the
Company, its subsidiaries and, to the knowledge of the Company, its affiliates acting on behalf of
the Company have conducted their businesses in compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith;
(aa) 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
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all applicable 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 best knowledge of
the Company, threatened;
(bb) Neither the Company nor any of its subsidiaries, directors or officers, nor to the
knowledge of the Company, any agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”), and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC;
(cc) The Company has no outstanding debt securities;
(dd) Other than as set forth in the Registration Statement and the Pricing Prospectus, the
Company has not sold, issued or distributed any shares of 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 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;
(ee) 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; and
(ff) The Company represents and warrants to the DSP Manager that (i) the Registration
Statement, the Prospectus, the Pricing Prospectus and any Issuer Free Writing Prospectus comply,
and any further amendments or supplements thereto will comply, with all applicable laws or
regulations of foreign jurisdictions in which the Prospectus or the Preliminary Prospectus and any
Issuer Free Writing Prospectus, as amended or supplemented if applicable, are distributed in
connection with the Directed Share Program and that (ii) no authorization, approval, consent,
license, order, registration or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is necessary under the securities
laws and regulations of foreign jurisdictions in which the Directed Shares are offered outside the
United States. The Company has not offered, or caused the DSP Manager 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 services or products.
2. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at a purchase price per Share of $[•], the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price
per Share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the Underwriters are
entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their election up to
[•] Optional Shares, at the purchase price per Share set forth in the paragraph above, for the sole
purpose of covering sales of Shares by the Underwriters in excess of the number of Firm Shares,
provided that the purchase price per Optional Share shall be reduced by an amount per share equal
to any dividends or distributions declared by the Company and payable on the Firm Shares but not
payable on the Optional Shares sold to the Underwriters hereunder. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement, setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as defined in Section
4(a) hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as the Representative may request upon
at least forty-eight hours’ notice to the Company prior to a Time of Delivery (as defined below),
shall be delivered by or on behalf of the Company to the Representative, through the facilities of
The Depository Trust Company (“DTC”), for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to the Representative at least forty-eight hours in
advance. The Company will cause the certificates representing the Shares to be made available for
checking and packaging at least twenty-four hours prior to the Time of Delivery with respect
thereto at the office of DTC or its designated custodian (the “Designated Office”). The time and
date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York
City time, on [•], 2008 or such other time and date, but not later than three business days
thereafter, as the Representative and the Company may determine, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by the Representative in the written
notice given by the Representative of the Underwriters’ election to purchase such Optional Shares,
or such other time and date as the Representative and the Company may determine, but shall not be
later than five business days after written notice of election to purchase the Optional Shares is
given. Such time and date for delivery of the Firm Shares is herein called the “First Time of
Delivery”, such time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the “Second Time of Delivery”, and each such time and date for delivery
is herein called a “Time of Delivery”.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 8(j) hereof, will be delivered at the
offices of Cravath, Swaine & ▇▇▇▇▇ LLP, Worldwide
Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Closing Location”), and the Shares will be
delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at 5:00 p.m., New York City time, on the New York Business Day next preceding such
Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to
the preceding sentence will be available for review by the parties hereto. For the purposes of
this Section 4 and Sections 5 and 8, “New York Business Day” shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City
are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or
any supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of
the Shares, of the suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with written and electronic copies of the Prospectus in New
York City from time to time, to furnish the Underwriters with electronic copies of the Prospectus
in New York City prior to 10:00 a.m., New York City time, on the New York Business Day next
succeeding the date of this Agreement and to
use its reasonable best efforts to furnish the Underwriters with written copies of the
Prospectus in New York City prior to 5:00 p.m., New York City time, on such date, in each case in
such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the Prospectus in order to
comply with the Act, to notify you and upon your request to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as
you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(d) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date
180 days after the date of the Prospectus (the “Lock-Up Period”), not to offer, sell, contract to
sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as
provided hereunder, of any securities of the Company that are substantially similar to the Shares,
including but not limited to any options or warrants to purchase shares of Stock or any securities
that are convertible into or exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities (other than (A) the grant of awards pursuant to employee
benefit plans or arrangements described in the Prospectus or approved by the Company’s shareholders
after the date hereof, including in connection with the settlement of restricted share units, (B)
upon the exercise of an option or upon conversion or exchange of convertible or exchangeable
securities, (C) the issuance of securities to be registered pursuant to any registration statement
on Form S-8 pursuant to any benefit plans or arrangements disclosed in the Prospectus or approved
by the Company’s shareholders after the date hereof and (D) the issuance of any
securities of the Company that are substantially similar to the Shares in connection with the
acquisition of the assets of, or a significant portion of the equity of, or a joint venture with,
another entity, provided, however that, with respect to (D) above, (i) the aggregate number of
shares so issued shall not exceed 10% of the number of any securities of the Company that are
substantially similar to the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to receive Shares, outstanding
immediately following the offering and sale of the Shares in accordance with this Agreement and
(ii) prior to the issuance of such shares, each recipient of such securities shall agree in writing
with you, in an agreement in the form to be agreed to by the Representatives, not to sell, offer,
dispose or otherwise transfer any such shares or options during the Lock-Up Period) without your
prior written consent; provided, however, that if (1) during the last 17 days of the initial
Lock-Up Period, the Company releases earnings results or announces material news or a material
event or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it
will release earnings results during the 15-day period following the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of the earnings results or the
announcement of the material news or material event, as applicable, unless the Representative
waives, in writing, such extension; the Company will provide the Representative and each person
subject to the Lock-Up Period pursuant to the lockup letters described in Section 8(i) with prior
notice of any such announcement that gives rise to an extension of the Lock-up Period;
(f) To furnish to its shareholders within the time periods required by the Exchange Act (or,
if the Exchange Act is not applicable, as soon as practicable after the end of each fiscal year) an
annual report (including a balance sheet and statements of income, shareholders’ equity and cash
flows of the Company and its consolidated subsidiaries certified by independent public accountants)
and, within the time periods required by the Exchange Act (or, if the Exchange Act is not
applicable, as soon as practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the Registration
Statement)), to make available to its shareholders consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the Registration Statement, to
furnish to you copies of all reports or other communications (financial or other) furnished to
shareholders, and to deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission); provided, that any information or documents available
on the
Commission’s Electronic Data Gathering, Analysis and Retrieval System shall be considered
furnished for the purposes of this section 5(g).
(h) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(i) To use its best efforts to list, subject to notice of issuance, the Shares on The NASDAQ
Stock Market LLC (the “Exchange”);
(j) To file with the Commission such information on Form 10-Q or Form 10-K as may be required
by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(l) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering
of the Shares (the “License”); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred.
Furthermore, the Company covenants with the DSP Manager that the Company will comply with all
applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction
in which the Directed Shares are offered in connection with the Directed Share Program.
6. (a) The Company represents and agrees that, without the prior consent of the
Representative, it has not made and will not make any offer relating to the Shares that would
constitute a “free writing prospectus” as defined in Rule 405 under the Act; each Underwriter
represents and agrees that, without the prior consent of the Company and the Representative, it has
not made and will not make any offer relating to the Shares that would constitute a free writing
prospectus; any such free writing prospectus the use of which has been consented to by the Company
and the Representative is listed on Schedule II(a) or Schedule II(b) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show;
(c) The Company agrees that if at any time following its issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Representative and,
if requested by the Representative, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this Section 6(c) shall not apply to any statements or omissions
in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the Representative expressly for use
therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees and expenses of the Company’s counsel and accountants
in connection with the registration of the Shares under the Act and all other expenses in
connection with the preparation, printing, reproduction and filing of the Registration Statement,
any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments
and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or reproducing any Agreement among Underwriters, this Agreement,
the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all
expenses in connection with the qualification of the Shares for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the reasonably incurred fees and
expenses of counsel for the Underwriters in connection with such qualification and in connection
with the Blue Sky survey; (iv) all fees and expenses in connection with listing the Shares on the
Exchange; (v) the filing fees incident to, and the reasonably incurred fees and expenses of counsel
for the Underwriters in connection with, any required review by the Financial Industry Regulatory
Authority of the terms of the sale of the Shares; (vi) the cost of preparing stock certificates (if
any); (vii) the cost and charges of any transfer agent or registrar; (viii) all fees and expenses
related to the Directed Share Program (including fees and expenses of counsel not to exceed
$30,000), including fees and expenses incurred in connection with the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of
copies of the Directed Share Program material, and any duties or taxes incurred in connection with
the Directed Share Program; and (ix) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees and expenses of their
counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make. For the avoidance of doubt, each of the
Company and the Underwriters will pay or cause to be paid their own fees and expenses relating
to presentations or meetings undertaken in connection with the marketing of the offering and sale
of the Shares to prospective investors and the Underwriters’ sales forces, including 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, travel, lodging and other
expenses incurred by the officers of the Company and any such consultants; provided, however, that
the cost of any aircraft chartered in connection with the road show shall be divided equally
between the Company and the Underwriters.
8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; all material required
to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with
the Commission within the applicable time period prescribed for such filing by Rule 433; if
the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to
you such written statement, written opinion or opinions, dated such Time of Delivery, in
form and substance satisfactory to you, with respect to the matters as you shall reasonably
request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Company, shall have furnished to you
their (i) written opinion and (ii) negative assurance letter, each dated such Time of
Delivery, in the forms set forth in Annex II hereto;
(d) The General Counsel of the Company shall have furnished to you his written
statement, dated such Time of Delivery, in the form set forth in Annex III hereto;
(e) On the date of the Prospectus promptly following the execution of this Agreement,
at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to
the Registration Statement filed subsequent to the date of this Agreement and also at each
Time of Delivery, Ernst & Young shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in the forms set forth in Annex I hereto (a draft of
the form of the letter to be delivered on the date of the Prospectus is attached as Annex
I(a) hereto and a draft of the form of the letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of each Time of Delivery
is attached as Annex I(b) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall have sustained since the
date of the latest audited financial statements included in the Pricing Prospectus any loss
or interference with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii)
since the respective dates as of which information is given in the Pricing Prospectus there
shall not have been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(g) On or after the Applicable Time there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities generally on
the Exchange; (ii) a suspension or material limitation in trading in the Company’s
securities on the Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States;
(iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (v) the occurrence of
any other calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event specified in clause (iv)
or (v) in your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the Exchange;
(i) The Company shall have obtained and delivered to the Underwriters executed copies
of an agreement from each of the persons or entities listed in Schedule III hereto;
(j) The Company shall have complied with the provisions of Section 5(c) hereof with
respect to the furnishing of prospectuses on the New York Business Day next succeeding the
date of this Agreement; and
(k) The Company shall have furnished or caused to be furnished to you at such Time of
Delivery certificates of officers of the Company satisfactory to you as to the accuracy of
the representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (e) of this Section and as to such other matters as you may reasonably request.
(l) The Formation Transaction (as such term is defined in the Prospectus) shall have
been completed.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment
or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through the Representative
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are
based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus,
in reliance upon and in conformity with written information furnished to the Company by such
Underwriter through the Representative expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection with investigating
or defending any such action or claim as such expenses are incurred.
(c) The Company will indemnify and hold harmless the DSP Manager (including its respective
directors, officers and employees) and each person, if any, who controls the DSP Manager within the
meaning of Section 15 of the Act (collectively, the “DSP Manager Entities”), against any losses,
claims, damages or liabilities, joint or several, to which the DSP Manager or the DSP Manager
Entities may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the material prepared by or with the
consent of the Company for distribution to the Participants in connection with the Directed Share
Program or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, when considered in conjunction with the
Prospectus or any applicable preliminary prospectus, not misleading; (ii) are caused by the failure
of any Participant to pay for and accept delivery of the securities which immediately following the
Effective Date of the Registration Statement were subject to a properly confirmed agreement to
purchase; or (iii) are related to or arise out of the Directed Share Program in any manner, except
that this clause (iii) shall not apply to the extent that such loss, claim, damage or liability is
finally judicially determined to have resulted primarily from the gross negligence or willful
misconduct of the DSP Manager or the DSP Manager Entities.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party. Notwithstanding anything to the
contrary in this Agreement, if indemnity may be sought pursuant to Section 9(c) hereof, then in
addition to such separate firm for the indemnified parties, the indemnifying party shall be liable
for the reasonable fees and expenses of not more than one separate firm (in addition to any local
counsel) for the DSP Manager, the directors, officers, employees and agents of the DSP Manager, and
all persons, if any, who control the DSP Manager within the meaning of either the Act or the
Exchange Act for the defense of any losses, claims, damages or liabilities arising out of the
Directed Share Program.
(e) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (d) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Shares purchased pursuant to
this Agreement (before deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the Shares purchased
pursuant to this Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault 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 on the one hand or the
Underwriters on the other and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this subsection (e) 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 which does not take account of the equitable
considerations referred to above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (e) shall be deemed to include 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 subsection (e), 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 which 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be
in addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as about to become a
director of the Company) and to each person, if any, who controls the Company within the meaning of
the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Shares which it
has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you
or another party or other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such Shares on such terms.
In the event that, within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies you that it has so arranged
for the purchase of such Shares, you or the Company shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall
include any person substituted under this Section with like effect as if such person had originally
been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company
to sell the Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and expenses of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company shall then
be under no further liability to any Underwriter except as provided in Sections 7 and 9
hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
Representative at ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Registration Department; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 9(d) hereof shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon request; provided,
however, that notices under subsection 5(e) shall be in writing, and if to the Underwriters shall
be delivered or sent by mail, telex or facsimile transmission to you as the Representative at
▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Control Room; and if to
any person or entity set forth on Schedule IV, shall be delivered or sent by mail, telex or
facsimile transmission to the address or contact specified on such Schedule IV. Any such
statements, requests, notices or agreements shall take effect upon receipt thereof. In accordance
with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), the Underwriters are required to obtain, verify and record information that identifies
their respective clients, including the Company, which information may include the name and address
of their respective clients, as well as other information that will allow the Underwriters to
properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares
from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant
to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand,
and the several Underwriters, on the other, (ii) in connection therewith and with the process
leading to such transaction each Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company, (iii) no Underwriter
has assumed an advisory or fiduciary responsibility in favor of the Company with respect to
the offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the
Company has consulted its own legal and financial advisors to the extent it deemed appropriate.
The Company agrees that it will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
| Very truly yours, ▇▇▇▇▇▇ Investments, Inc. |
||||
| by: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date hereof:
▇▇▇▇▇▇▇, Sachs & Co.
by:
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
On behalf of each of the Underwriters