Underwriting Agreement
Exhibit
1
Class
A Common Stock, par value $0.001 per share
_______________, 2009
Xxxxxxx, Xxxxx
& Co.,
00 Xxxxx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx
00000
As representative
of the several Underwriters
named in Schedule I
hereto.
Ladies and
Gentlemen:
Artio Global
Investors Inc., 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 . . . . . . . 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
$0.001 (“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”).
In connection with
the consummation of the offering contemplated by this Agreement, Artio Global
Holdings LLC (“Artio LLC”) and the current members of Artio LLC, including the
Company and Xxxxxxx X. Xxxx and Xxxxxxx-Xxxx Xxxxxx (Messrs. Pell and
Younes, collectively, the “Principals”), will amend and restate the operating
agreement of Artio LLC (the “Amended and Restated Operating Agreement”) and
effect a series of transactions as a result of which the Company will be the
sole managing member of Artio LLC and the Company and the Principals will own
approximately 70.0% and 30.0%, respectively, of a single new class of membership
units of Artio LLC (the “New Class A Units”). The Company will also
amend and restate its certificate of incorporation (the “Amended and Restated
Certificate”) to authorize three classes of common stock, the
Stock, Class B Common Stock, par value $0.001 per share (the “Class B
Stock”) and Class C Common Stock, par value $0.01 per shares (the “Class C
Stock”, and together with the Stock and the Class B Stock, the “Common Stock”),
and will issue an aggregate of . . . . . . . shares
of its Class B Stock to the Principals, which will represent approximately . . %
of the combined voting power of the
Company’s Common
Stock and an aggregate of . . . . . . . shares of its Class C Stock
to Xxxxxx Xxxx Holding Ltd. Each of the foregoing transactions, along with other
transactions, are described under “Our Structure and Reorganization” in the
Pricing Prospectus (as defined below) (collectively, the “Reorganization
Transactions”).
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. 333-149178) (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, and, excluding exhibits thereto, 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
Securities Act of 1933, as amended (the “Act”), which became effective upon
filing, a registration statement on Form 8-A and the mutual fund proxy, 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”;
and 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
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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, Sachs & Co. expressly for use
therein;
(c) For
the purposes of this Agreement, the “Applicable Time” is ___:___ __m (Eastern
time) on the date of this Agreement. The Pricing Prospectus, 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 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, Xxxxx & Co.
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 Xxxxxxx, Sachs & Co. 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
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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;
(f)
Neither the Company nor any of its subsidiaries own any real
property. The Company and its subsidiaries have good and marketable
title in fee simple 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 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 interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(g) (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 such
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a material adverse effect on the general affairs,
management, prospects, financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole (a “Material
Adverse Effect”); (ii) Artio 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 power and authority (limited liability company power and other)
to own its properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign limited liability 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 subsidiary of the
Company has been duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware,
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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;
(h) As
of [__], 2009, after giving effect to the completion of the Reorganization
Transactions and the issuance of the Shares, the use of the net proceeds
therefrom as described in “Use of Proceeds” in the Pricing Prospectus, and as
described in “Our Structure and Reorganization” in the Pricing Prospectus, the
Company would have an authorized and outstanding capitalization as set forth
under the pro forma and pro forma as adjusted columns, respectively, of the
capitalization table in the section of the Pricing Prospectus entitled
“Capitalization”; following the filing of the Company’s Amended and Restated
Certificate with the Secretary of State of the State of Delaware, all of the
issued and outstanding shares of capital stock (including the Shares and all
other shares of Common Stock) of the Company will have been duly authorized and,
upon payment and delivery, will be validly issued, fully paid and non-assessable
and conform to the description of the Common Stock contained in the Pricing
Prospectus and Prospectus;
(i) The
Amended and Restated Operating Agreement of Artio LLC has been duly authorized
and, after giving effect to the Reorganization Transactions, all of the
membership interests of Artio LLC will have been duly and validly authorized and
issued and, upon the acquisition of New Class A Units by the Company, will,
to the extent owned by the Company as described in the Pricing Prospectus, be
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(j) All
of the membership interests of each subsidiary of the Company have been duly and
validly authorized and issued 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;
(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 certificate of incorporation and
the Amended and Restated Certificate or by-laws (or other organizational
documents) of the Company or any of its subsidiaries, or (iii) any statute,
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) as would not,
individually or in the aggregate, have a Material Adverse Effect or have a
material adverse effect on the consummation of the transactions contemplated
herein; and no consent, approval, authorization,
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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) Neither
the Company nor any of its subsidiaries is (i) in violation of its certificate
of incorporation or by-laws, or such other organizational documents or (ii) in
default in the performance or observance of any material 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, have a
Material Adverse Effect or have a material adverse effect on the consummation of
the transactions contemplated herein;
(m) 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 Common Stock (including the Stock), under the caption
“Material U.S. Federal Tax Considerations for Non-U.S. Holders of Our Class A
Common Stock”, and under the captions “Our Structure and Reorganization”,
“Relationships and Related Party Transactions” and “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;
(n) 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;
(o) 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 required to register as
an “investment company”, as such term is defined in the Investment Company Act
of 1940, as amended (the “Investment Company Act”);
(p) The
Company is not an “ineligible issuer,” as defined under Rule 405 under the
Act;
(q) KPMG
LLP, who have certified certain financial statements of the Company and its
subsidiaries are each independent public accountants as and to
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the extent required
by the Act and the rules and regulations of the Commission
thereunder;
(r) The
Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Securities Act of 1934, as amended
(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 is not aware of any material
weaknesses in its internal control over financial reporting.
(s) 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;
(t) Except
as disclosed in the Pricing Prospectus, the Company’s internal accounting
controls are sufficient to provide reasonable assurance that: (i) transactions
are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with U.S. generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(u) 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 in all material respects.
(v) Each
employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), that is
maintained, administered or contributed to by the Company or any of its
affiliates, that together with the Company would be deemed a “single employer”
within the meaning of Section 4001(b)(1) of ERISA (“ERISA Affiliates”) for
employees or former employees of the Company and its ERISA Affiliates has been
maintained in compliance in all material respects with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the “Code”); no prohibited transaction, within the meaning of Section
406 of
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ERISA or Section
4975 of the Code, for which the Company or any of its ERISA Affiliates would
have any material liability has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption; for
each such plan that is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA, no “accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair
market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions; no
“reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the Company or any of its ERISA
Affiliates would have any material liability; and neither the Company nor any of
its ERISA Affiliates has incurred or reasonably expects to incur any material
liability under Title IV of ERISA with respect to termination of, or withdrawal
from, any “pension plan”;
(w) The
Company is not required to be registered, licensed or qualified as an investment
adviser, a broker-dealer, a commodity trading advisor, a commodity pool operator
or a futures commission merchant; each of the Company’s subsidiaries that is
required to be registered, licensed or qualified as an investment adviser, a
broker-dealer, a commodity trading advisor, a commodity pool operator or a
futures commission merchant is so registered, licensed or qualified in each
jurisdiction where the conduct of its business requires such registration,
license or qualification (and such registration, license or qualification is in
full force and effect), and is in compliance with all applicable laws requiring
any such registration, licensing or qualification, except as set forth in or
contemplated in the Pricing Prospectus or where the failure to be so registered,
licensed or qualified would not, individually or in the aggregate, result in a
Material Adverse Effect; each of the Company’s subsidiaries that is required to
be registered as an investment adviser under the Investment Advisers Act of
1940, as amended (the “Advisers Act”), has adopted a written compliance program
reasonably designed to ensure compliance with the Advisers Act and has appointed
a chief compliance officer, except where the failure to do so would not,
individually or in the aggregate, result in a Material Adverse
Effect;
(x) The
Company does not directly advise any of the Xxxxxx Xxxx mutual funds (the “JBA
Funds”) and is not a party to any investment advisory agreement; each investment
advisory agreement to which any of the subsidiaries is a party is a valid and
legally binding obligation of such subsidiary and is in compliance with the
applicable provisions of the Advisers Act, except as have not had and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and none of the subsidiaries is in breach or violation of or in
default under any such agreement, which breach, violation, default or invalidity
has had or would reasonably be expected to have, individually or in the
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aggregate, a
Material Adverse Effect, except as set forth in or contemplated in the Pricing
Prospectus;
(y) Except
as set forth in the Pricing Prospectus, consummation of the transactions
contemplated by this Agreement, the Reorganization Transactions and the
Transaction Agreements (as defined below) will not adversely affect in any
material respect the ability of the Company or its subsidiaries to conduct their
respective businesses as described in the Pricing Prospectus and the Prospectus
in compliance with applicable law, including, but not limited to, providing
investment advisory services to clients and funds, whether or not such funds are
registered under the Investment Company Act;
(z) Neither
the Company nor any of its subsidiaries, and, to the knowledge of the Company,
no director, officer, agent, employee or other person acting on behalf of the
Company or any of its subsidiaries or the JBA Funds, has violated or is in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977; or
made any unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment;
(aa) The
operations of the Company and its subsidiaries and, to the knowledge of the
Company, the JBA Funds, are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of 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
its subsidiaries or, to the knowledge of the Company, the JBA Funds, with
respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened, except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect;
(bb) To
the best of the Company’s knowledge, none of the Company, its subsidiaries, the
JBA Funds or any of their respective affiliates 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 knowingly, directly or
indirectly, use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to the subsidiaries, the JBA Funds or any 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 and its subsidiaries, as applicable, have duly authorized and, by the
First Time of Delivery (as defined in Section 4 hereof) shall have executed and
delivered, the Tax Receivable Agreement, the Registration Rights Agreement, and
the Exchange Agreement (each in substantially the form filed as exhibits to the
Registration Statement) (collectively, the “Transaction Agreements”) to which it
is a party; each of the Transaction Agreements to which
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it is a party is a
valid and legally binding agreement of the Company or such subsidiary,
enforceable in accordance with its terms, subject as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles; provided, however, that the Company makes no
representation or warranty as to the authorization, execution or delivery of any
such agreement by any other party thereto;
(dd) None
of the subsidiaries that acts as a general partner or managing member (or in a
similar capacity) or as an investment adviser or investment manager of any JBA
Fund has performed any act or otherwise engaged in any conduct that would
prevent such subsidiary from benefiting from any exculpation clause or other
limitation of liability available to it under the terms of the management
agreement or advisory agreement, as applicable, between such subsidiary and such
JBA Fund, except, in each case, as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; and
(ee) Except
as disclosed in the Pricing Prospectus, there are no contracts, agreements or
understandings between the Company or its subsidiaries 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 owned or to be owned
by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
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.
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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 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. 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 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 Xxxxxxx, Xxxxx
& 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, Sachs
& 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, Xxxxx &
Co. 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 (as defined
below) 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
.............., 2009 or such other time and date as Xxxxxxx, Sachs & Co. and
the Company may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by Xxxxxxx, Xxxxx & Co. in
the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters’
election to purchase such Optional Shares, or such other time and date as
Xxxxxxx, Xxxxx & Co. and the Company may agree upon in
writing. 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
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Underwriters
pursuant to Section 8(k) hereof, will be delivered at the offices of Xxxxxxxx
& Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (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 3:00 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, “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;
12
(c) Prior
to 10:00 a.m., New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus 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 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 (i) the issuance by Artio LLC of New
Class A Units to the Principals and the Company in connection with the
Reorganization Transactions, (ii) the issuance of [__] shares of Class B Stock
to the Principals in connection with the Reorganization Transactions, (iii) the
issuance by the Company of shares of Stock upon the
13
exercise of an
option or warrant or the conversion or exchange of convertible or exchangeable
securities outstanding on the date of this Agreement, or the exchange of New
Class A Units by the Principals on the date of the First Time of Delivery, as
contemplated under the caption “Our Structure and Organization—Offering
Transactions—New Agreements with the Principals” in the Pricing
Prospectus, (iv) the grant of options or the issuance of shares of
Stock by the Company to employees, officers, directors, advisors or consultants
under any employee benefit plans described in the Pricing Prospectus that do not
become transferrable or result in the delivery of securities that become
transferrable during the Lock-Up Period (except that the foregoing limitation on
grants shall not apply to the [__] shares of Stock that will be granted to
employees of the Company on the date of the First Time of Delivery, provided
that the transfer of any of such shares shall not require the filing by any
party under the Exchange Act), and (v) with 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 Xxxxxxx, Xxxxx &
Co. waives, in writing, such extension; the Company will provide Xxxxxxx, Sachs
& Co. and each stockholder 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 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 that is filed by the Company and publicly available on the
Commission’s XXXXX system within the applicable time requirements for the filing
of such report under the Exchange Act shall be deemed to have been timely
furnished and delivered to the stockholders at the time furnished or filed with
the Commission;
(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 stockholders, and to deliver to you (i) as soon as they are
available, copies of any reports and financial
14
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 that is
publicly available on the Commission’s XXXXX system shall be deemed to have been
furnished and delivered to you 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 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
New York Stock Exchange (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.
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,
15
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 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. 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, 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,
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, 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 securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters (including Xxxxxxxx & Xxxxxxxx LLP and any other counsel in any
non-U.S. jurisdiction) in connection with such qualification and in connection
with the Blue Sky survey and the foreign jurisdiction restrictions survey, (iv)
all fees and expenses in connection with listing the Shares on the Exchange; (v)
the filing fees incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, any required review by
Financial Industry Regulatory Authority of the terms of the sale of the Shares;
(vi) the cost of preparing stock certificates; (vii) the cost and charges of any
transfer agent or registrar; (viii) its pro rata portion of any costs
associated with any private jet used by the Company for travel in connection
with any roadshow (it being understood that the Underwriters will bear all other
expenses
16
incurred by the
Underwriters in connection with any roadshow, including travel, car and meeting
venue expenses); 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 of their counsel
(including Xxxxxxxx & Xxxxxxxx LLP and any other counsel in any non-U.S.
jurisdiction), 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, 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) Xxxxxxxx
& Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated such Time of Delivery, in form and
substance reasonably satisfactory to you, with respect to such 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) Xxxxx Xxxx
& Xxxxxxxx LLP, counsel for the Company, shall have furnished to you their
written opinion and 10b-5 letter, dated such Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect set forth in Annex II(a)
and Annex II(b) hereto, respectively.
17
(d) Xxxx X.
Xxxxxx, General Counsel of the Company, shall have furnished to you his written
opinion, dated such Time of Delivery, in form and substance reasonably
satisfactory to you, to the effect set forth in Annex II(c) hereto.
(e) On the date
of the Prospectus at a time prior to 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, KPMG LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and substance
reasonably satisfactory to you, to the effect set forth in Annex I hereto (the
executed copy of the letter delivered prior to the execution of this Agreement
is attached as Annex I(a) hereto and a draft of the form of 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, 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
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 (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical
rating organization”, as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company’s debt
securities;
18
(h) 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;
(i) The Shares
to be sold at such Time of Delivery shall have been duly listed, subject to
notice of issuance, on the Exchange; and
(j) The Company
shall have obtained and delivered to the Underwriters executed copies of an
agreement from Xxxxxx Xxxx Holding Ltd. and each executive officer and director
of the Company substantially to the effect set forth in Section 5(e) hereof in
form and substance satisfactory to you;
(k) 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
(l) 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.
(m) Prior to the First Time
of Delivery, the Reorganization Transactions shall have been consummated and the
Amended and Restated Certificate shall have been filed with the Secretary of
State of the State of Delaware.
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
19
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, any Issuer
Free Writing Prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the Act otherwise than as a result of a
breach by an Underwriter of Section 6(a) hereof with respect to 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 Xxxxxxx, Sachs & Co.
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 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
20
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.
(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 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 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 (before deducting
expenses) received
21
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.
(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. (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
22
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
23
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 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 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
jointly or by Xxxxxxx, Xxxxx & Co. on behalf of 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 in care of 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 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 Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Control Room. 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.
24
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, without regard to the conflict of laws principles
thereof.
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.
25
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 seven
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,
|
||
By:
|
||
Name:
|
||
Title:
|
||
By:
|
||
Name:
|
||
Title:
|
Xxxxxxx,
Sachs & Co.
|
||
By:
|
||
(Xxxxxxx,
Xxxxx & Co.)
|
On behalf of each
of the Underwriters
26
SCHEDULE
I
|
||||||
Underwriter
|
Total
Number of
Firm
Shares
to be Purchased
|
Number
of Optional
Shares
to be
Purchased
if
Maximum
Option
Exercised
|
||||
Xxxxxxx, Sachs & Co. | ||||||
Total
|
SCHEDULE
II
Issuer Free Writing
Prospectuses:
ANNEX
I
[Form
of Comfort Letter]
Pursuant to Section
8(e) of the Underwriting Agreement, the accountants shall furnish letters to the
Underwriters to the effect that:
(i) They
are independent certified public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published rules
and regulations thereunder;
(ii) In
their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, financial forecasts and/or pro
forma financial information) examined by them and included in the Prospectus or
the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published rules
and regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial statements
of the Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representative of
the Underwriters (the “Representative”);
(iii) They
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited condensed
consolidated statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Representative and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the Act and the
related published rules and regulations, nothing came to their attention that
cause them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The
unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Company for the five most
recent fiscal years included in the Prospectus agrees with the corresponding
amounts (after restatements where applicable) in the audited consolidated
financial statements for such five fiscal years which were included or
incorporated by reference in the Company’s Annual Reports on Form 10-K for such
fiscal years;
I-1
(v) They
have compared the information in the Prospectus under selected captions with the
disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of Items 301,
302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On
the basis of limited procedures, not constituting an examination in accordance
with generally accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
in the Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i)
the unaudited consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus do not comply
as to form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any
other unaudited income statement data and balance sheet items included in the
Prospectus do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and items were derived,
and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included in the
Prospectus;
(C) the
unaudited financial statements which were not included in the Prospectus but
from which were derived any unaudited condensed financial statements referred to
in clause (A) and any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in clause (B) were not determined on
a basis substantially consistent with the basis for the audited consolidated
financial statements included in the Prospectus;
(D) any
unaudited pro forma consolidated condensed financial statements included in the
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
I-2
(E) as
of a specified date not more than five days prior to the date of such letter,
there have been any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the latest
financial statements included in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders’ equity or other
items specified by the Representative, or any increases in any items specified
by the Representative, in each case as compared with amounts shown in the latest
balance sheet included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for
the period from the date of the latest financial statements included in the
Prospectus to the specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by the
Representative, or any increases in any items specified by the Representative,
in each case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the Representative,
except in each case for decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(vii) In
addition to the examination referred to in their report(s) included in the
Prospectus and the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Representative,
which are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus, or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Representative,
and have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found
them to be in agreement.
I-3
ANNEX
II(a)
[FORM OF DPW
OPINION]
1.
|
The Company
is validly existing as a corporation in good standing under the laws of
the State of Delaware; Artio 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; Artio Global Management LLC is validly existing as
a limited liability company in good standing under the laws of its
jurisdiction of incorporation; the Company has corporate power and
authority to issue the Shares, to enter into this Agreement and to perform
its obligations thereunder and to own its properties and conduct its
business as described in the Pricing Prospectus and Prospectus; each
subsidiary of the Company has limited liability power and authority to own
its properties and conduct its business as described in the Pricing
Prospectus and Prospectus.
|
2.
|
The
membership interests of Artio LLC have been duly authorized and validly
issued and, upon their acquisition by the Company, are owned directly or
indirectly by the Company.
|
3.
|
This
Agreement has been duly authorized, executed and delivered by the
Company.
|
4.
|
All of the
Shares have been duly authorized and, when issued and delivered to and
paid for by the Underwriters pursuant to this Agreement, will be validly
issued, fully paid and non-assessable; the issuance of such Shares is not
subject to any statutory preemptive rights; and the Shares conform to the
description of the Shares in the Pricing Prospectus and
Prospectus.
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5.
|
The Company
is not, and after giving effect to the offering and sale of the Shares and
the application of the proceeds thereof as described in the Pricing
Prospectus and Prospectus will not be required to register as an
“investment company” as such term is defined in the Investment Company Act
of 1940, as amended.
|
6.
|
The Company’s
authorized equity capitalization is as set forth in the Pricing Prospectus
and the Prospectus.
|
7.
|
The execution
and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene (i) any provision of
the laws of the State of New York or any federal law of the United States
of America that in our experience is normally applicable to general
business corporations in relation to transactions of the type contemplated
by this Agreement, or the General Corporation Law of the State of Delaware
provided that we express no opinion as to federal or state securities
laws, (ii) the certificate of incorporation or the Amended and Restated
Certificate or by laws of the Company, or (iii) any agreement that is an
exhibit to the Registration
Statement.
|
8.
|
No consent,
approval, authorization, or order of, or qualification with, any
governmental body or agency under the laws of the State of New York or any
federal law of the United States of America that in our experience is
normally applicable to general business corporations in relation to
transactions of the type contemplated by this Agreement, or the General
Corporation Law of the State of Delaware is required for the execution,
delivery and performance by the Company of its obligations under this
Agreement, except such as may be required under federal or state
securities or Blue Sky laws as to which we express no
opinion.
|
9.
|
We have
considered the statements included in the Prospectus under the caption
“Description of Capital Stock” insofar as they summarize the provisions of
the laws referred to therein, the Amended and Restated Certificate and
by-laws of the Company (the “Offering Summary”), under the caption
“Underwriting” insofar as they summarize the provisions of the
Underwriting Agreement (the “Underwriting Summary”), and under the caption
“Material U.S. Federal Tax Considerations for non-U.S. Holders of our
Class A Common Stock” (the “Tax Considerations Summary”). In
our opinion, the Offering Summary and Underwriting Summary fairly
summarize the above-mentioned provisions in all material respects, and the
Tax Considerations Summary is accurate, insofar as it purports to describe
provisions of U.S. federal income tax laws or legal conclusion with
respect thereto, fairly and accurately summarizes the matters referred to
therein in all material respects.
|
II(a)-2
ANNEX
II(b)
[FORM OF DPW 10B-5
LETTER]
1. The
Registration Statement and the Prospectus appear on their face to be
appropriately responsive in all material respects to the requirements of the Act
and the applicable rules and regulations of the Commission thereunder;
and
2. Nothing
has come to our attention that causes us to believe that:
a. the
Registration Statement or the prospectus included therein at the time the
Registration Statement became effective contained any 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,
b. at
the Applicable Time, the Preliminary Prospectus together with the Issuer Free
Writing Prospectuses set forth in Schedule II contained any untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or
c. the
Prospectus as of its date and as of the Time of Delivery contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
II(b)-1
ANNEX
II(c)
[FORM OF OPINION OF
GENERAL COUNSEL]
1.
|
The Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware. The
Company 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 such failure to
be so qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse
Effect.
|
2.
|
Artio LLC has
been duly qualified as a foreign limited liability 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 such failure to
be so qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse
Effect.
|
3.
|
All of the
issued shares of capital stock of the Company (including the Shares) have
been duly and validly authorized and are fully paid and
non-assessable.
|
4.
|
To the best
of such counsel’s knowledge and other than as set forth in the 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 such
counsel’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by
others.
|
5.
|
Neither the
Company nor any of its subsidiaries is (i) in violation of its certificate
of incorporation or by-laws or such other organizational documents, 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, have a Material Adverse
Effect.
|
6.
|
I do not know
of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required.
|
II(c)-1