Underwriting Agreement
EXHIBIT 1.1
Duff
& Xxxxxx Corporation
Class
A Common Stock, par value $.01
November 4, 2009
Xxxxxxx,
Sachs & Co.
00 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
As
representative of the several Underwriters
named in
Schedule I hereto
Ladies
and Gentlemen:
Duff
& Xxxxxx Corporation, a Delaware 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
2,500,000 shares (the “Shares”) of Class A common
stock, par value $.01 (“Stock”) of the
Company. To the extent there are no additional Underwriters listed in
Schedule I other than you, the terms “Underwriter” and “Underwriters” shall mean
Xxxxxxx, Sachs & Co.
1. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) Two
registration statements on Form S-3 (File Nos. 333-158739 and 333-162551) (the
“Initial Registration
Statements”) in respect of the Shares have been filed with the Securities
and Exchange Commission (the “Commission”); pursuant to Rule
429 under the Securities Act of 1933, as amended (the “Act”), the latest registration
statement constitutes a post-effective amendment to the first registration
statement and includes a combined prospectus relating to any offering of
securities of the Company under the Initial Registration Statements; the Initial
Registration Statements and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits to the Initial
Registration Statements but including all documents incorporated by reference in
the prospectus contained in the latest registration statement, to you for each
of the other Underwriters, 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 Act,
which became effective upon filing, no other document with respect to the
Initial Registration Statements or document incorporated by reference therein
has heretofore been filed with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to you as the representative); and no
stop order suspending the effectiveness of the Initial Registration Statements,
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 (the base prospectus filed as part of the latest
registration statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement relating to the
Shares, is hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus supplement)
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act is hereinafter called a “Preliminary Prospectus”; the
various parts of the Initial Registration Statements and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including (i)
any prospectus supplement relating to the Shares that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to be part of the
Initial Registration Statements at the time it was declared effective and (ii)
the documents incorporated by reference in the prospectus, each as amended at
the time such part of the Initial Registration Statements 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
Basic Prospectus, as amended and supplemented, immediately prior to the
Applicable Time (as defined in Section 1(c) hereof) is hereinafter called the
“Pricing
Prospectus”; the form of the final
prospectus relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Act, in accordance with Section 5(a) hereof is hereinafter
called the “Prospectus”;
any reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3,
as of the date of such prospectus; any reference to any amendment or supplement
to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration
Statement, any prospectus supplement relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act and any documents filed under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
incorporated therein, in each case after the date of the Basic Prospectus, such
Preliminary Prospectus or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; 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”);
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(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 Xxxxxxx, Xxxxx & Co. expressly for use
therein;
(c) For the
purposes of this Agreement, the “Applicable Time” is 5:30 p.m.
(Eastern time) on the date of this Agreement. The Pricing Prospectus
as supplemented by the Issuer Free Writing Prospectus set out on Schedule II
hereto, 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 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 Prospectus and the pricing information set out on Schedule III hereto 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 Xxxxxxx, Sachs & Co. expressly for use
therein;
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(d) The documents
incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will 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 not misleading;
and no such documents were filed with the Commission since the Commission’s
close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement without providing prior
notice of such filing and its contents to the Underwriters;
(e) 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 Xxxxxxx, Xxxxx & Co. expressly for use
therein;
(f) None of the
Company, Duff & Xxxxxx Acquisitions, LLC (“DPA LLC”) or any of its
subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference 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, stockholders’ equity or results
of operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Pricing Prospectus;
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(g) Neither the
Company nor any of its subsidiaries own any real property. The
Company and its subsidiaries have good and marketable title to all personal
property owned by them, 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 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 with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries;
(h) (i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, 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 where any such
failure to be so qualified and in good standing would not, individually or in
the aggregate have a material adverse effect on the condition (financial or
otherwise), earnings, business, properties, results of operations or prospects
of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”);
(ii) DPA LLC has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, with limited
liability company power and authority to own its properties and conduct its
business as described in the Pricing Prospectus, and has been duly qualified as
a foreign company 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 where any such
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a Material Adverse Effect and (iii) each other subsidiary of
the Company has been duly incorporated, organized or formed and is validly
existing as a corporation, a limited liability company or a limited company and,
where applicable, in good standing, under the laws of its jurisdiction of
incorporation, organization or formation, except where any such failure to be in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect;
(i) 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; all
of the issued shares of capital stock or the membership interests of each
significant subsidiary (as defined in Rule 1-02 of Regulation S-X) 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
otherwise set forth in the Pricing Prospectus) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims;
and all of the membership interests of DPA LLC outstanding upon consummation of
this offering will have been duly authorized and validly issued and to the
extent owned by the Company, will be owned by it free and clear of all liens,
encumbrances, equities or claims;
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(j) 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 will conform in all material respects to the
description of the Stock contained in the Prospectus;
(k) 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 the Amended and Restated By-laws of the Company, the
Certificate of Formation or limited liability company agreement of DPA LLC, or
other organizational documents of its subsidiaries, as applicable, 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) and (iii) for any such
conflict, breach or violation that would not, individually or in the aggregate,
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 may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(l) All corporate
and limited liability company approvals (including those of stockholders or
members), and all amendments of any limited liability agreements or other
agreements binding on the Company, DPA LLC or any of its affiliates, necessary
for the Company to consummate the transaction contemplated in this Agreement
have been obtained and to the Company’s knowledge have not been
revoked;
(m) Except as
otherwise set forth in the Pricing Prospectus, no holders of securities of, or
other interests in the Company have any preemptive rights to acquire any
securities of, or other interests in the Company, or any rights to the
registration of any securities or other interests under the Registration
Statement;
(n) None of the
Company, DPA LLC or any of its subsidiaries is (i) in violation of its Amended
and Restated Certificate of Incorporation or Amended and Restated By-laws (in
the case of the Company), Certificate of Formation or limited liability company
agreement (in the case of DPA LLC) or other organizational documents, as
applicable, 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 any default that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect;
(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, and the statements set forth in the Prospectus under
the caption “Material U.S. Federal Tax Consequences to Non-U.S. Stockholders”,
and under the caption “Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete
and fair in all material respects;
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(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 Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(q) Neither the
Company nor DPA LLC is and, after giving effect to the offering and sale of the
Shares and the application of the proceeds thereof, will be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as
amended (the “Investment
Company Act”);
(r) At the time
of filing the Initial Registration Statements the Company was not and is not an
“ineligible issuer,” as defined under Rule 405 under the Act;
(s) KPMG LLP, who
have certified certain consolidated financial statements of the Company and its
subsidiaries, and have audited the Company’s internal control over financial
reporting and management’s assessment thereof, are independent registered public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(t) 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;
(u) Since the
date of the latest audited financial statements included or incorporated by
reference 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; and
(v) 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; 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.
2. Subject to
the terms and conditions herein set forth, 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
$15.00, the number of Shares as set forth opposite the name of such Underwriter
in Schedule I hereto.
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3. Upon the
authorization by you of the release of the Shares, the several Underwriters
propose to offer the Shares for sale upon the terms and conditions set forth in
the Prospectus.
4. (a) The
Shares to be purchased by each Underwriter hereunder, and in such authorized
denominations and registered in such names as Xxxxxxx, Sachs & Co. may
request upon at least forty-eight hours’ prior notice to the Company shall be
delivered by or on behalf of the Company to Xxxxxxx, Xxxxx & Co., 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 Xxxxxxx, Sachs & Co. at least forty-eight hours
in advance. The time and date of such delivery and payment shall be
9:30 a.m., New York City time, on November 9, 2009 or such other time and date
as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in
writing. Such time and date are herein called the “Time of
Delivery”.
(b) The documents
to be delivered at the 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 Xxxxx Xxxx & Xxxxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the “Closing Location”), and the
Shares will be delivered through the facilities of DTC, all at the Time of
Delivery. A meeting will be held at the Closing Location at 4:00
p.m., New York City time, on the New York Business Day next preceding the 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, “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, the Basic Prospectus or the Prospectus prior to the Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof
unless in consultation with you after reasonable notice, such amendment is
required by law; 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 file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required in connection with the offering or sale of the Shares; 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 reasonable best efforts
to obtain the withdrawal of such order;
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(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 as a dealer in securities or to file a general consent to service of process
in any jurisdiction or to subject itself to taxation in any jurisdiction if it
is not otherwise so subject;
(c) Prior to
10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement, or as soon as practicable thereafter, and from time to
time, to furnish the Underwriters with electronic copies of the Prospectus and,
as soon as practicable thereafter, written copies, in New York City 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 or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify you and upon your request to file such
document and 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
90 days after the date of the Prospectus (the “Lock-Up Period”), not to, and
to cause DPA LLC and all of its subsidiaries 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, including
membership interests in DPA LLC or any such substantially similar securities
(other than (i) pursuant to equity compensation plans existing on the date of
this Agreement, (ii) upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement or (iii)
in connection with the acquisition of any company or business, in an aggregate
amount not to exceed 5% of the total shares of the Company’s Class A and Class B
common stock outstanding on the date hereof, so long as the recipient of any
such shares delivers an agreement to Xxxxxxx, Xxxxx & Co., duly executed by
such recipient, substantially in the form set forth in this paragraph), without
your prior written consent;
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(f) To furnish to
its stockholders as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, stockholders’
equity and cash flows of the Company and its consolidated subsidiaries certified
by an independent registered public accounting firm) and, 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 stockholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in reasonable
detail, provided that, any report or financial statement furnished or filed with
the Commission that is publicly available on the Commission’s XXXXX system shall
be deemed to have been furnished to the stockholders at the time furnished or
filed with the Commission;
(g) During a
period of two 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 stockholders, 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 stockholders generally
or to the Commission), provided that, any report or financial statement
furnished or filed with the Commission that is publicly available on the
Commission’s XXXXX system shall be deemed to have been furnished to the
stockholders at the time furnished or filed with the Commission;
(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 Prospectus under the caption “Use of
Proceeds” and in the Issuer Free Writing Prospectus listed on Schedule II
hereto;
(i) 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
(j) 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.
9
6. (a) The Company
represents and agrees that, without the prior consent of Xxxxxxx, Xxxxx &
Co., 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 Xxxxxxx, Sachs & Co., 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 Xxxxxxx, Xxxxx & Co. is listed on Schedule II
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; and
(c) The Company
agrees that if at any time following 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
Xxxxxxx, Sachs & Co. and, if requested by Xxxxxxx, Xxxxx & Co., 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 representation and warranty 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 Xxxxxxx, Sachs & Co.
7. The Company
covenants and agrees with the several Underwriters that:
(a) the Company
will pay or cause to be paid the following: (i) the reasonable, documented fees,
disbursements 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, the Basic Prospectus, 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 producing any Agreement
among Underwriters, this Agreement, 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 reasonable, documented
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey (up to a maximum of
$5,000); (iv) all fees and expenses in connection with listing the Shares on the
New York Stock Exchange (the “Exchange”); (v) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required review by the Financial Industry Regulatory
Authority, Inc. of the terms of the sale of the Shares; (vi) the cost and
charges of any transfer agent or registrar; (vii) all expenses incurred by the
Company in connection with any roadshow presentation to potential investors; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section.
10
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 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.
8. The
obligations of the Underwriters hereunder, 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 the 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 to the Company’s knowledge 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 to the
Company’s knowledge 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) Xxxxx
Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to
you such written opinion or opinions, dated the Time of Delivery, in form and
substance satisfactory to you, with respect to the matters covered in paragraphs
(iii), (iv) and (vii) (with respect only to statements under the captions
“Descriptions of Capital Stock” and “Underwriting”) of Annex I(a), as described
in subsection (c) below, as well as such other related matters as you may
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) Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, outside counsel for the Company and Xx
Xxxxxx, general counsel of the Company shall have furnished to you their written
opinions, dated the Time of Delivery, in form and substance reasonably
satisfactory to you, to the effect set forth in Annex I(a) and Annex I(b),
respectively;
(d) (i)
On the date of the Prospectus at a time prior to the execution of this
Agreement, (ii) 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 (iii) at the Time of Delivery, KPMG LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you;
11
(e) (i) None of
the Company or any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference 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, stockholders’ 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 on
the terms and in the manner contemplated in the Prospectus;
(f) 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 the judgment of
Xxxxxxx, Xxxxx & Co. makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at the Time of
Delivery on the terms and in the manner contemplated in the
Prospectus;
(g) The Shares to
be sold at the Time of Delivery are listed on the Exchange;
(h) The Company
shall have obtained and delivered to the Underwriters executed copies of an
agreement from the Company’s directors,
executive officers and certain security holders, substantially to the effect set
forth in Section 5(e) hereof in form and substance satisfactory to
you;
(i) 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 or as soon as practicable thereafter, as
the case may be; and
(j) The
Company shall have furnished or caused to be furnished to you at the 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 the Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the 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.
12
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, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus as supplemented by the pricing information set out on
Schedule III hereto or 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, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus as supplemented by the pricing information set out on
Schedule III hereto 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 Xxxxxxx,
Sachs & Co. expressly for use therein.
(b) Each
Underwriter, severally and not jointly, 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, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus as supplemented by the pricing information
set out on Schedule III hereto 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, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus as supplemented by the pricing information set out on
Schedule III hereto 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
Xxxxxxx, Xxxxx & Co. 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) Promptly
after receipt by an indemnified party under subsection (a) or (b) 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 reasonably 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 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.
13
(d) If
the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
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 hand, 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 (c) 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 hand, 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 hand, shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, 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 (d) 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
(d). 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 (d) 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 (d), 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
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
14
(e) 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. [Intentionally
omitted]
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
for any reason, the Shares are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the
Underwriters through you for all reasonable, documented out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares, 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
as the representative.
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 Xxxxxxx, Sachs & Co., 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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(c) 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 Section 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 Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Control
Room. In addition, notices delivered pursuant to the lock-up
agreements in Section 8(h) shall be to Xxxxxxx, Sachs & Co., 00 Xxxxx
Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any such statements,
requests, notices or agreements shall take effect upon receipt
thereof.
15
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) among 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.
16
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
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 among each of the Underwriters, 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.
17
| Very truly yours, | |||
| Duff & Xxxxxx Corporation | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxxx | |
| Xxxxx X. Xxxxxxxxx | |||
|
Executive
Vice President and
Chief
Financial Officer
|
|||
| Accepted as of the date hereof: | ||
| Xxxxxxx, Sachs & Co. | ||
|
By:
|
/s/ Xxxxxxx, Xxxxx &Co. | |
| (Xxxxxxx, Sachs & Co.) | ||
| On behalf of each of the Underwriters | ||
18
SCHEDULE
I
|
Total
Number
of
|
||||
|
Shares
|
||||
|
to
be
|
||||
|
Underwriter
|
Purchased
|
|||
|
Xxxxxxx,
Xxxxx & Co.
|
2,500,000 | |||
|
Total
|
2,500,000 | |||
19
SCHEDULE
II
Issuer
Free Writing Prospectuses: Free Writing Prospectus dated November 4,
2009
20
SCHEDULE
III
Pricing
Information
Price per
Share to the public: $15.50
Number of
Shares: 2,500,000
21
