LPL Investment Holdings Inc. Common Stock Underwriting Agreement
Exhibit 1.1
EXECUTION VERSION
Common Stock
April 26, 2011
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities LLC
As representatives (the “Representatives”) of the several Underwriters
named in Schedule I hereto
▇.▇. ▇▇▇▇▇▇ Securities LLC
As representatives (the “Representatives”) of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o ▇.▇. ▇▇▇▇▇▇ Securities LLC
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The stockholders of LPL Investment Holdings Inc., a Delaware corporation (the “Company”),
named in Schedule II hereto (the “Selling Stockholders”) propose, severally and not jointly and
subject to the terms and conditions stated herein, to sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) an aggregate of 6,212,724 shares of common stock, par value $0.001 per
share (“Stock”) of the Company. The aggregate of 6,212,724 shares to be sold by the Selling
Stockholders is herein called the “Shares.”
1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that:
(i) An “automatic shelf registration statement” as defined in Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-173703) in respect
of the Stock has been filed with the Securities and Exchange Commission (the “Commission”)
not earlier than three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order suspending
the effectiveness of such registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or to the knowledge of the Company,
threatened by the Commission, and no notice of objection of the Commission to the use of
such form of registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company (the base prospectus filed as part
of such registration statement, in the form in which it has most recently been filed with
the Commission on or prior to the date of this Agreement, is hereinafter called the “Base
Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Shares filed with the Commission pursuant to Rule 424(b) under the Act is
hereinafter called a “Preliminary Prospectus”; the various parts of such registration
statement, including all exhibits thereto and any prospectus supplement relating to the
Shares that is filed with the Commission and deemed by virtue of Rule 430B to be part of
such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the Base Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(a)(iii) hereof), is hereinafter called the “Pricing
Prospectus”; such final prospectus relating to the Shares, in the form filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof, is
hereinafter called the “Prospectus”; any reference herein to the Base Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and incorporated therein, in each case after the date of the
Base Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; 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”);
(ii) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form
S-3 and Item 12 of Form 10-K (which is incorporated by reference therein);
(iii) For the purposes of this Agreement, the “Applicable Time” is 6:15 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus, as supplemented by those Issuer
Free Writing Prospectuses, if any, and other information listed on Schedule III(c) hereto,
taken together (collectively, the “Pricing Disclosure Package”), as of the Applicable Time,
did not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule III(a) or Schedule III(c) hereto does not conflict with the information contained
in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer
Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however,
that this
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representation and warranty shall not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form
S-3 and Item 12 of Form 10-K (which is incorporated by reference therein);
(iv) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of such
documents when they became effective or were filed with the Commission contained an untrue
statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the applicable
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Representatives expressly for use
therein or by a Selling Stockholder expressly for use in the preparation of the answers
therein to Item 7 of Form S-3 and Item 12 of Form 10-K (which is incorporated by reference
therein); and no such documents were filed with the Commission since the Commission’s close
of business on the business day immediately prior to the date of this Agreement and prior to
the execution of this Agreement, except as set forth on Schedule III(b) hereto;
(v) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to
each part of the Registration Statement and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein or by a Selling Stockholder expressly for use
in the preparation of the answers therein to Item 7 of Form S-3 and Item 12 of Form 10-K
(which is incorporated by reference therein);
(vi) Neither the Company nor any of its subsidiaries listed on Annex I hereto (each a
“Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has sustained
since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise than as set forth
or
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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 (other than pursuant to the conversion, exchange or
exercise of convertible, exchangeable or exercisable securities, including without
limitation options and warrants, and the grant of equity incentives, in each case in the
ordinary course of business) or long-term debt of the Company and its subsidiaries, taken as
a whole, or any material adverse change, or any development that would, individually or in
the aggregate, have a material adverse effect on (A) the current or future consolidated
financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries, taken as a whole (a “Material Adverse Effect”) or (B) the current or future
general affairs or management of the Company, in each case, otherwise than as set forth or
contemplated in the Pricing Prospectus;
(vii) The Company and its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property (other than
Intellectual Property, which is covered in subsection (xxxi) below) 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 would not, individually or in the aggregate, have a
Material Adverse Effect; 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 would not, individually or in the aggregate, have a Material Adverse
Effect;
(viii) 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 corporate power and authority
to own its properties and conduct its business as described in the Pricing Prospectus, and
has been duly qualified as a foreign 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, or is subject to no
material liability or disability by reason of the failure to be so qualified in any such
jurisdiction; and each Significant Subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its jurisdiction of
incorporation;
(ix) The Company has an authorized capitalization as set forth in the Pricing
Prospectus, and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and conform in all
material respects to the description of the Stock contained in the Pricing Prospectus and
Prospectus; and all of the issued shares of capital stock of each Significant Subsidiary of
the Company have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors’ qualifying shares and except as otherwise set
forth in the Pricing Disclosure Package) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (other than liens arising
under the Company’s existing secured indebtedness described in the Pricing Prospectus and
the Prospectus); no Stock has been issued contrary to any pre-emptive rights, whether
arising from contract or by operation of law; and there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue Stock or any other class of capital stock of
the Company (except as set forth in the Pricing Disclosure Package);
(x) [Reserved]
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(xi) The compliance by the Company with this Agreement and the consummation by the
Company 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, (A) 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, (B) the Certificate of Incorporation or By-laws of the Company or
other organizational documents of any of its subsidiaries, or (C) any statute or any order,
rule or regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties, except where, for purposes of
clauses (A) and (C), such conflict, breach, violation or default would not, individually or
in the aggregate, have a Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental agency or
body is required for the consummation by the Company of the transactions contemplated by
this Agreement, except for (1) the registration under the Act of the Shares, (2) such
consents, approvals, authorizations, orders, registrations or qualifications as may be
required under state securities or Blue Sky laws and (3) the approval, if required, by the
Financial Industry Regulatory Authority, Inc. (the “FINRA”) of the underwriting terms and
arrangements in connection with the purchase and distribution of the Shares by the
Underwriters;
(xii) Neither the Company nor any of its subsidiaries is (A) in violation of its
Certificate of Incorporation or By-laws or other organizational documents, as applicable,
(B) 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 or (C) in violation of any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such subsidiary or any
of its properties, as applicable, except where, for purposes of clauses (B) and (C), such
default or violation would not, individually or in the aggregate, have a Material Adverse
Effect;
(xiii) The statements set forth in the Pricing Prospectus and Prospectus under the
caption “Description of Common Stock,” insofar as they purport to constitute a summary of
the terms of the Stock and under the captions “Material U.S. Federal Income Tax
Considerations For Non-U.S. Holders Of Common Stock” and “Underwriting,” insofar as they
purport to describe the provisions of the documents and U.S. laws referred to therein, and
the statements under the caption “Business—Regulation” of the Company’ Annual Report on
Form 10-K for the fiscal year ended December 31, 2010, as filed with the Commission on March
9, 2011 (the “Annual Report”), incorporated by reference in the Pricing Prospectus and
Prospectus, insofar as they purport to describe the provisions of the documents and U.S.
laws referred to therein, are accurate, complete and fair summaries in all material
respects;
(xiv) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company, any of its subsidiaries or, to the
Company’s knowledge, any officer or director of the Company is a party or of which any
property of the Company, any of its subsidiaries or any officer or director of the Company
is the subject which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect; and, to the Company’s
5
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xv) The Company is not an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(xvi) (A) (i) At the time of filing the Registration Statement, (ii) if applicable, at
the time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and
(iii) at the time the Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) under the Act) made any offer relating to the Shares in
reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing
of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Shares, the Company
was not an “ineligible issuer” as defined in Rule 405 under the Act;
(xvii) Deloitte & Touche LLP, who have certified certain financial statements of the
Company and its subsidiaries, and have audited the Company’s internal control over financial
reporting and management’s assessment thereof, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder;
(xviii) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting principles
in the United States (“GAAP”). Except as disclosed in the Pricing Prospectus, the Company’s
internal control over financial reporting is effective and the Company is not aware of any
material weaknesses in its internal control over financial reporting;
(xix) Except as disclosed in the Pricing Prospectus, since the date of the latest
audited financial statements included or incorporated by reference in the Pricing
Prospectus, there has been no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting;
(xx) 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;
(xxi) Except as disclosed in the Pricing Prospectus, the Company, each of its
subsidiaries and each officer or director of the Company or such subsidiaries possess all
registrations, licenses, certificates, permits and other authorizations issued by the
appropriate federal or state regulatory authorities necessary to conduct their respective
businesses (including as an investment advisor, a commodity trading advisor, a commodity
pool operator,
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a futures commission merchant or a broker-dealer, as applicable), and is in compliance
with all applicable laws, rules and regulations requiring any such registrations, licenses,
certificates, permits and other authorizations, including those rules and regulations listed
under the caption “Business—Regulation” of the Company’s Annual Report (the “Investment
Regulations”) except where non-possession or non-compliance would not, individually or in
the aggregate, have a Material Adverse Effect; and, except as disclosed in the Pricing
Prospectus, neither the Company nor any such subsidiaries or, to the knowledge of the
Company, any officer or director of the Company or such subsidiaries, has received any
notice of proceedings relating to the revocation or modification of any such registrations,
licenses, certificates, permits or other authorizations which, if the subject of an
unfavorable decision, ruling or finding, would, individually or in the aggregate, have a
Material Adverse Effect;
(xxii) This Agreement has been duly authorized, executed and delivered by the Company;
(xxiii) The Company and each of its subsidiaries have filed all federal, state and
local tax returns that are required to be filed or have requested extensions thereof, and
have made all withholdings, given all notices and supplied all other information and kept
all records and documentation in relation to taxes which they were required to make, give,
supply or keep, and all such tax returns, withholdings, notices, records and information
were complete and accurate (except in any case in which the failure to do so would not,
individually or in the aggregate, have a Material Adverse Effect) and the Company and each
of its subsidiaries have paid all taxes required to be paid by the Company or any of its
subsidiaries and any other assessment, fine or penalty levied against the Company or any of
its subsidiaries, to the extent that any of the foregoing is due and payable, and have made
adequate provisions in its accounts for any taxes that will become due, or which have arisen
or accrued or will arise or accrue with regard to the period up to and including the Time of
Delivery (as defined in Section 4 hereof), except as would not, individually or in the
aggregate, have a Material Adverse Effect. The charges, accruals and reserves on the books
of the Company and each of its subsidiaries in respect of all tax liabilities of the Company
and each of its subsidiaries for any years not finally determined are adequate to meet any
assessments or re-assessments for additional tax for any years not finally determined,
except to the extent of any inadequacy that would not, individually or in the aggregate,
have a Material Adverse Effect;
(xxiv) [Reserved]
(xxv) The Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all policies of insurance
insuring the Company or any of its subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; there are no claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company nor any such subsidiary
has been refused any insurance coverage sought or applied for; and neither the Company nor
any such subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to
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continue its business at a cost that would not, individually or in the aggregate, have
a Material Adverse Effect;
(xxvi) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries (in his, her or its capacity as a director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries) is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the
“FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and the
Company, its subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure continued compliance therewith;
(xxvii) The operations of the Company and its subsidiaries are and have been conducted
at all times in material compliance with applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions in which the Company and its subsidiaries
conduct business, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened;
(xxviii) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries (in his, her or its capacity as a director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries) is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or knowingly indirectly use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC;
(xxix) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is threatened, and the Company is
not aware of any existing or threatened labor disturbance by the employees of any of its or
its subsidiaries’ principal suppliers, contractors or customers, that could, individually or
in the aggregate, have a Material Adverse Effect;
(xxx) Each of the Company and its subsidiaries has fulfilled its obligations, if any,
under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement
Income Security Act of 1974 (“ERISA”) and the regulations and published interpretations
thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of the Company and its
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subsidiaries are eligible to participate and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and such regulations and
published interpretations. The Company and its subsidiaries have not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of ERISA;
(xxxi) The Company or one of its subsidiaries owns or possesses adequate rights to all
inventions, patent applications, patents, trademarks (both registered and unregistered),
trade names, service names, copyrights, trade secrets and other proprietary information and
rights which are material to the conduct of the Company’s business (collectively, the
“Intellectual Property”), and the Company is unaware of any claim, or any reasonable basis
for any such claim, to the contrary, or any challenge by any other person to the rights of
the Company or any of its subsidiaries with respect to the Intellectual Property. To the
knowledge of the Company, the Company is not infringing or misappropriating the intellectual
property of any third party. None of the Company or its subsidiaries has received notice of
a claim of infringement or misappropriation of the intellectual property of a third party,
and the Company is unaware of any claim of misappropriation, or any reasonable basis for any
such claim. The Intellectual Property owned by the Company is owned solely and exclusively
by the Company and/or its subsidiaries and any Intellectual Property that is the subject of
a registration is valid and enforceable.
(xxxii) The Company has not taken and will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation of the price of the
Shares;
(xxxiii) No subsidiary of the Company is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary’s property or assets
to the Company or any other subsidiary of the Company, except as disclosed in the Pricing
Prospectus;
(xxxiv) There is and has been no failure on the part of the Company or, to the
knowledge of the Company after reasonable investigation, any of the Company’s directors or
officers, in their capacities as such, to comply with any provision of the Sarbanes Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith, including
Section 402 related to loans and Sections 302 and 906 related to certifications;
(xxxv) Any certificate signed by any authorized officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the offering of the
Shares shall be deemed a representation and warranty by the Company, as to matters covered
thereby, to each Underwriter;
(xxxvi) Nothing has come to the attention of the Company that has caused the Company to
believe that the statistical and market-related data included in the Pricing Prospectus is
not based on or derived from sources that the Company reasonably believes are reliable and
accurate in all material respects;
(xxxvii) [Reserved]
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(xxxviii) Except as set forth in the Pricing Prospectus, there are no persons with
registration rights or other similar rights to have any securities registered by the Company
under the Act;
(xxxix) The combined historical financial statements of the Company and its
consolidated subsidiaries included in the Pricing Prospectus and the Registration Statement,
as amended and supplemented immediately prior to the Applicable Time, present fairly in all
material respects the financial condition, results of operations, stockholders’ equity and
cash flows of the Company as of the dates and for the periods indicated, comply as to form
in all material respects with the applicable accounting requirements of the Act and have
been prepared in conformity with GAAP applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected financial data set forth under
the caption “Selected Financial Data” in the Pricing Prospectus fairly present, on the basis
stated in the Pricing Prospectus, the information included therein; and
(xl) The Significant Subsidiaries are the only significant subsidiaries of the Company
as defined in Rule 1-02 of Regulation S-X under the Act.
(b) Each of the Selling Stockholders severally represents and warrants to, and agrees with,
each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for the execution and
delivery by such Selling Stockholder of this Agreement and the selling stockholder agreement
executed by such Selling Stockholder (the “Selling Stockholder Agreement”), and for the sale
and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been
obtained; and such Selling Stockholder has full right, power and authority to enter into
this Agreement and the Selling Stockholder Agreement and to sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling Stockholder hereunder and the
compliance by such Selling Stockholder with all of the provisions of this Agreement and the
Selling Stockholder Agreement and the consummation of the transactions herein and therein
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, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such Selling Stockholder is
a party or by which such Selling Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of such Selling Stockholder
if such Selling Stockholder is a corporation, the Partnership Agreement of such Selling
Stockholder if such Selling Stockholder is a partnership or any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling Stockholder, including Investment
Regulations (provided, that no representation and warranty is made in this Section 1(b)(ii)
with respect to the anti-fraud provisions of federal and state securities laws), and no
consent, approval, authorization or order of, or qualification with, any court or
governmental body or agency is required for the performance by such Selling Stockholder of
its obligations under this Agreement or the Selling Stockholder Agreement and consummation
of the transactions contemplated by this Agreement in connection with the Shares to be sold
by such Selling Stockholder hereunder, except for the registration under the Act of the
Shares and such consents, approvals, authorizations, orders, registrations or qualifications
as may be required under state securities
10
or Blue Sky laws in connection with the purchase and distribution of the Shares by the
Underwriters;
(iii) Such Selling Stockholder has, and immediately prior to the Time of Delivery (as
defined in Section 4 hereof), as applicable, such Selling Stockholder will have, good and
valid title to the Shares to be sold by such Selling Stockholder hereunder, free and clear
of all liens, encumbrances, equities or claims; and, upon delivery of such Shares and
payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, will pass to the several Underwriters;
(iv) During the period beginning from the date hereof and continuing to and including
the date 90 days after the date of the Prospectus (the “Lock-Up Period”), not to offer,
sell, contract to sell, publicly announce its intention to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of, except as provided hereunder, 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 (the “Subject Securities”) other than (A) transfers as
a bona fide gift or gifts, (B) transfers to immediate family members, trusts for the benefit
of the Selling Stockholder or immediate family members of the Selling Stockholder, or
limited partnerships the partners of which are the Selling Stockholder and/or immediate
family members of the Selling Stockholder, (C) transfers by will or intestacy, (D) transfers
to limited or general partners, members, stockholders or affiliates (as defined under Rule
12b-2 of the Exchange Act) of such Selling Stockholder or, in the case of a corporation, to
a wholly-owned subsidiary of such Selling Stockholder, (E) the exercise of the Selling
Stockholder’s option to purchase Shares granted prior to the date hereof under a stock
incentive plan or stock purchase plan of the Company described in the Pricing Prospectus and
the Prospectus, or the disposition to the Company of the Selling Stockholder’s shares of
restricted stock granted pursuant to the terms of such plan prior to the date hereof, or (F)
transfer of the Subject Securities acquired on the open market following the Time of
Delivery; (G) sales or transfers pursuant to a trading plan entered into prior to the date
of this Agreement complying with Rule 10b5-1 under the Exchange Act; (H) the establishment
of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares
of Stock, provided that such plan does not provide for the transfer of shares during the
Lock-Up Period; (I) the sale of Shares to the Underwriters in connection with the public
offering contemplated hereby; or (J) transfers with the prior written consent of the
Representatives on behalf of the Underwriter; provided that, in the case of any transfer or
distribution pursuant to clauses (A) through (D) of this Section 1(b)(iv), each donee,
distributee or transferee shall sign and deliver a lock-up agreement substantially to the
effect set forth in this Section 1(b)(iv) in form and substance satisfactory to the
Representatives and such transfer or distribution shall be a disposition for no value;
provided further that, in the case of any transfer, distribution, exercise or disposition
pursuant to clauses (A) through (F) of this Section 1(b)(iv), no filing under Section 16(a)
of the Exchange Act during the Lock-Up Period shall be required or shall be voluntarily made
in connection therewith. For purposes of this Section 1(b)(iv), “immediate family” shall
mean any relationship by blood, marriage or adoption, not more remote than a first cousin.
The foregoing restriction in this Section 1(b)(iv) is expressly agreed to preclude each of
the Selling Stockholders from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or disposition of
the Subject Securities even if such Subject Securities would be disposed of by someone other
than such Selling Stockholder. Such
11
prohibited hedging or other transactions would include, without limitation, any short
sale or any purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to any of the Subject Securities or with respect to any security
that includes, relates to, or derives any significant part of its value from such Subject
Securities.
(v) Such Selling Stockholder has not taken and will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of the Shares;
(vi) To the extent that any statements or omissions made in the Registration Statement,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any amendment or
supplement thereto are made in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder pursuant to Item 7 of Form S-3 and Item
12 of Form 10-K (which is incorporated by reference therein) expressly for use therein, such
Registration Statement, Preliminary Prospectus and the Pricing Supplement did, and the
Prospectus and any further amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading;
(vii) In order to document the Underwriters’ compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect
to the transactions herein contemplated, such Selling Stockholder will deliver to you prior
to or at the Time of Delivery (as hereinafter defined) a properly completed and executed
United States Treasury Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof) as an exhibit to the Selling Stockholder
Agreement;
(viii) All of the Shares to be sold by such Selling Stockholder hereunder (including
certificates in negotiable form representing such Shares, if applicable) have been placed in
custody under the custody provisions of the Selling Stockholder Agreement to Mellon Investor
Services LLC (operating with the service name BNY Mellon Shareowner Services), a New Jersey
limited liability company, as custodian (the “Custodian”), and such Selling Stockholder has
duly executed and delivered the power of attorney included in the Selling Stockholder
Agreement, appointing the persons indicated in Schedule II hereto, and each of them, as such
Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact”) with authority to execute
and deliver this Agreement on behalf of such Selling Stockholder, to determine the purchase
price to be paid by the Underwriters to the Selling Stockholders as provided in Section 2
hereof, to authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Selling Stockholder Agreement;
(ix) The Shares held in custody for such Selling Stockholder under the Selling
Stockholder Agreement (including the Shares represented by certificates) are subject to the
interests of the Underwriters hereunder; the arrangements made by such Selling Stockholder
for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact
by the Selling Stockholder Agreement, are to that extent irrevocable; the obligations of the
Selling Stockholders hereunder shall not be terminated by operation of law, whether by the
death or
12
incapacity of any individual Selling Stockholder or, in the case of an estate or trust,
by the death or incapacity of any executor or trustee or the termination of such estate or
trust, or in the case of a partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any other event; if any individual
Selling Stockholder or any such executor or trustee should die or become incapacitated, or
if any such estate or trust should be terminated, or if any such partnership or corporation
should be dissolved, or if any other such event should occur, before the delivery of the
Shares to be sold by such Selling Stockholder hereunder, the Shares to be sold by such
Selling Stockholder hereunder shall be delivered by or on behalf of the Selling Stockholders
in accordance with the terms and conditions of this Agreement and the Selling Stockholder
Agreement; and actions taken by the Attorneys-in-Fact pursuant to the Selling Stockholder
Agreement shall be as valid as if such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact,
or any of them, shall have received notice of such death, incapacity, termination,
dissolution or other event; and
(x) Such Selling Stockholder is not prompted by any material non-public information
concerning the Company or any of its subsidiaries that is not disclosed in the Pricing
Prospectus to sell its Shares pursuant to this Agreement.
2. Subject to the terms and conditions herein set forth, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from each of the Selling Stockholders,
at a purchase price per share of $33.16, the number of Shares (to be adjusted by the
Representatives so as to eliminate fractional shares) determined by multiplying the aggregate
number of Shares to be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate
number of Shares to be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Shares to
be purchased by all of the Underwriters from all of the Selling Stockholders hereunder.
3. Upon the authorization by the Representatives of the release of the Shares, the several
Underwriters propose to offer the Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in book-entry form, and in
such authorized denominations and registered in such names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon
at least forty-eight hours’ prior notice to the Company and the Selling Stockholders shall be
delivered by or on behalf of the Selling Stockholders to ▇▇▇▇▇▇▇, 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 Custodian to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at least
forty-eight hours in advance. The time and date of such delivery and payment shall be 9:30 a.m.,
New York City time, on May 2, 2011 or such other time and date as the Representatives, the Company
and the Selling Stockholders may agree upon in writing. Such time and date for delivery of the
Shares is herein called the “Time of Delivery.”
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 8(m) hereof, will be delivered at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
13
"Closing Location”), and the Shares will be delivered through the facilities of DTC, all at
the Time of Delivery. A meeting will be held at the Closing Location at 3 p.m., New York City
time, on the New York Business Day next preceding the Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Agreement, “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 the Representatives 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; to make no
further amendment or any supplement to the Registration Statement, the Base Prospectus or the
Prospectus (in each case, other than due to the filing of a document under the Exchange Act) prior
to the Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof;
to advise the Representatives, 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 (in each case, other than due to the filing of a
document under the Exchange Act) and to furnish the Underwriters with copies thereof; to file
promptly all material required to be filed by the Company with the Commission pursuant to Rule
433(d) under the Act; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) is required in connection with the offering or sale of the Securities; to advise the
Representatives, 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 any notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act, 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; 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; in the event of any such issuance of a notice of objection, promptly to take such
reasonable steps including, without limitation, amending the Registration Statement or filing a new
registration statement, at its own expense, as may be necessary to permit offers and sales of the
Shares by the Underwriters (references herein to the Registration Statement shall include any such
amendment or new registration statement); and if required by Rule 430B(h) under the Act, to prepare
a form of prospectus in a form approved by the Representatives and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act,
and to make no further amendment or supplement to such form of prospectus (other than due to the
filing of a document under the Exchange Act) which shall be disapproved by the Representatives
promptly after reasonable notice thereof;
(b) Promptly from time to time to take such action as the Representatives may reasonably
request to qualify the Shares for offering and sale under the securities laws of such jurisdictions
as
14
the Representatives 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 or to subject itself to taxation in any such jurisdiction in which it is not otherwise
subject to taxation on the date hereof;
(c) Promptly after 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 the Representatives may reasonably request, and, if the delivery of a prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior
to the expiration of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such Prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify the Representatives and
upon your request to file such document and 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 reasonably 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 Lock-Up Period, not to offer, sell, contract to sell, publicly announce its
intention to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose
of, except as provided hereunder, or file any registration statement with the Commission relating
to the offering of, the Subject Securities, other than (i) the issuance of securities of the
Company to employees, advisors or consultants pursuant to stock incentive plans existing on the
date of this Agreement, (ii) the filing by the Company of any registration statement on Form S-8 or
a successor form thereto, (iii) the issuance of securities of the Company upon the conversion or
exchange of convertible or exchangeable securities outstanding as of the date of this Agreement and
(iv) the issuance of securities of the Company in connection with the acquisition by the Company or
one or more of its subsidiaries of the assets or capital stock of another person or entity, whether
through merger, asset acquisition, stock purchase or otherwise (provided that, the aggregate number
of shares issued pursuant to clause (iv) of this Section 5(e) does not exceed 5,442,982 shares of
Stock and prior to such issuance the recipient of such shares shall sign and deliver to the Company
a lock-
15
up letter substantially to the effect set forth in Section 1(b)(iv) in form and substance
satisfactory to the Representatives), in each case without the prior written consent of the
Representatives; the Company agrees with each of the Underwriters that, during the Lock-Up Period,
the Company will waive any lock-up provisions in existing agreements with holders of its
securities, if and only if such waiver is requested by the Representatives in writing; the
foregoing restriction in this Section 5(e) is expressly agreed to preclude the Company from
engaging in any hedging or other transaction which is designed to or which reasonably could be
expected to lead to or result in a sale or disposition of the Subject Securities even if such
Subject Securities would be disposed of by someone other than the Company; such prohibited hedging
or other transactions would include, without limitation, any short sale or any purchase, sale or
grant of any right (including, without limitation, any put or call option) with respect to any of
the Subject Securities or with respect to any security that includes, relates to, or derives any
significant part of its value from such Subject Securities;
(f) To the extent required by applicable law, 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 independent public accountants) 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;
(g) During a period of two years from the effective date of the Registration Statement, to
furnish to the Representatives copies of all reports or other communications (financial or other)
furnished to stockholders, and to deliver to the Representatives, as soon as they are available,
copies of any reports and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company is listed; provided,
however, that the Company may satisfy the requirements of this Section 5(g) by filing any such
reports, communications or information with the Commission via the Commission’s Electronic Data
Gathering, Analysis and Retrieval System;
(h) [Reserved]
(i) [Reserved]
(j) [Reserved]
(k) To pay the required Commission filing fees relating to the Shares within the time required
by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) 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 the
Representatives, it has not made and will not make any offer relating to the Shares that would
constitute a “free writing prospectus” as defined in Rule 405 under the Act; each Underwriter
represents and agrees that, without the prior consent of the Company and the Representatives, it
has not made and will not make any offer relating to the Shares that would constitute a free
writing
16
prospectus; any such free writing prospectus the use of which has been consented to by the
Company and the Representatives is listed on Schedule II(a) or Schedule II(c) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show;
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, 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 the
Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid: (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 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 state securities laws
as provided in Section 5(b) hereof, including the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with any Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the NASDAQ Global Select Market
(the “Exchange”), if applicable; (v) the cost of preparing stock certificates, if applicable; (vi)
the cost and charges of any transfer agent or registrar; (vii) the costs and expenses of the
Company relating to investor presentations on any road show undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, the travel and lodging
expenses of the representatives and officers of the Company and the Company’s pro rata share of the
cost of any aircraft or ground transportation (based on the respective number of passengers from
the Company and the Underwriters) chartered in connection with the road show, but not including,
without limitation, any expenses associated with any electronic road show; and (viii) all other
costs and expenses incident to the performance of its and the Selling Stockholders’ obligations
hereunder which are not otherwise specifically provided for in this Section 7. Each Selling
Stockholder covenants and agrees with the several Underwriters that such Selling Stockholder will
pay or cause to be paid (1) any fees and expenses of counsel for such Selling Stockholder and (2)
all expenses and taxes incident to the sale and delivery of the Shares to be sold by such Selling
Stockholder to the Underwriters hereunder; provided, that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. agrees to pay New
York State stock transfer taxes associated
17
with the sale of the Shares by each Selling Stockholder, and each Selling Stockholder agrees
to reimburse ▇▇▇▇▇▇▇, Sachs & Co. for associated carrying costs if such tax payment in respect of
the Shares sold by such Selling Stockholder is not rebated on the day of payment and for any
portion of such tax payment not rebated. It is understood that, except as provided in this Section
7, and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at the Time
of Delivery, shall be subject, in their discretion, to the condition that all representations and
warranties of the Company and of the Selling Stockholders herein and in the Selling Stockholder
Agreements are, at and as of the Time of Delivery, true and correct, the condition that the Company
and the Selling Stockholders shall have performed all of its and their respective obligations
hereunder and under the Selling Stockholder Agreements 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; 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 notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representatives;
(b) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished
to the Representatives such written opinion or opinions, dated the Time of Delivery, in form and
substance satisfactory to the Representatives, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such matters;
(c) Ropes & ▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Representatives
their written opinion or opinions, dated the Time of Delivery, in form and substance satisfactory
to the Representatives;
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, special regulatory counsel for the Company
shall have furnished to the Representatives their written opinion or opinions, dated the Time of
Delivery, in form and substance satisfactory to the Representatives;
(e) The counsel for the Selling Stockholders listed on Schedule IV hereto shall have furnished
to the Representatives their written opinion with respect to such Selling Stockholders for whom
they are acting as counsel, dated the Time of Delivery, as applicable, in form and substance
satisfactory to the Representatives;
(f) 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 the Time of Delivery, Deloitte
&
18
Touche LLP shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you;
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and
(ii) since the respective dates as of which information is given in the Pricing Prospectus there
shall not have been any change in the capital stock (other than pursuant to the conversion,
exchange or exercise of convertible, exchangeable or exercisable securities, including without
limitation options and warrants, and the grant of equity incentives, in each case in the ordinary
course of business) or long-term debt of the Company or any of its subsidiaries or any change or
development that would have a Material Adverse Effect, 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 the judgment of the Representatives 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
the Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(h) 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;
(i) 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, New York or State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered at the Time of Delivery on
the terms and in the manner contemplated in the Prospectus;
(j) The Shares to be sold at the Time of Delivery shall have been duly listed, subject to
notice of issuance, on the Exchange;
(k) The Company shall have obtained and delivered to the Underwriters executed copies of an
agreement from each person listed on Schedule V, substantially to the effect set forth in Section
1(b)(iv) hereof in form and substance satisfactory to the Representatives;
(l) The Company shall have complied with the provisions of Section 5(c) hereof with respect to
the timely furnishing of prospectuses; and
(m) The Company and the Selling Stockholders shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery, as applicable, certificates of officers of the Company
and of the Selling Stockholders, respectively, satisfactory to the Representatives as to the
19
accuracy of the representations and warranties of the Company and the Selling Stockholders,
respectively, herein at and as of the Time of Delivery, as applicable, as to the performance by the
Company and the Selling Stockholders of all of their respective obligations hereunder to be
performed at or prior to the Time of Delivery, as applicable, and as to such other matters as the
Representatives may reasonably request, and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a) and (g) of this Section and
as to such other matters as you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, 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 in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
expressly for use therein.
(b) Each of the Selling Stockholders will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free
Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule
433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, 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, any Issuer Free Writing Prospectus or any “issuer information” filed or
required to be filed pursuant to Rule 433(d) under the Act in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder expressly for use therein;
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 such Selling Stockholder 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, any Issuer Free Writing Prospectus or any “issuer information”
filed or required to be filed
20
pursuant to Rule 433(d) under the Act in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use therein; provided further, that the liability of such Selling Stockholder pursuant to this
subsection 9(b) shall not exceed the product of (i) the number of Shares sold by such Selling
Stockholder and (ii) the initial public offering price of the Shares listed on Schedule III(c)
hereto.
(c) Each Underwriter will indemnify and hold harmless the Company and each Selling Stockholder
against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder
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 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, 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 or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the Act in reliance upon
and in conformity with written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company and each Selling
Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any such action or claim as such expenses
are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel 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.
21
(e) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling Stockholders 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 and the
Selling Stockholders 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 by
the Company and the Selling Stockholders 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 or the Selling Stockholders 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, each
of the Selling Stockholders and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (e) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this subsection
(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. Notwithstanding the foregoing provisions of this subsection (e),
no Selling Stockholder shall be required to (i) contribute unless such Selling Stockholder would
have had indemnification obligations pursuant to Section 9(b) above or (ii) contribute any amount
in excess of the amount by which such Selling Stockholder’s gross proceeds received by it from the
sale of the Shares pursuant to this Agreement exceeds the amount of any damages which such Selling
Stockholders has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this
subsection (e) to contribute are several in proportion to their respective underwriting obligations
and not joint.
22
(f) The respective obligations of the Company and the Selling Stockholders under this Section
9 shall be in addition to any liability which the Company and the respective Selling Stockholders
may otherwise have and shall extend, upon the same terms and conditions, to each officer and
director of each Underwriter and to each person, if any, who controls any Underwriter within the
meaning of the Act and each broker-dealer affiliate or a selling agent 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 and to each person, if any, who controls
the Company or any Selling Stockholder within the meaning of the Act. The Company agrees and
confirms that references to “affiliates” of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated that appear in this
Agreement shall be understood to include Mitsubishi UFJ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities Co., Ltd.
10. (a) If any Underwriter shall default in its obligation to purchase the Shares that it has
agreed to purchase hereunder at the Time of Delivery, the Representatives may in their discretion
arrange for the Representatives 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 the
Representatives do not arrange for the purchase of such Shares, then the Company and the Selling
Stockholders shall be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to purchase such Shares on such
terms. In the event that, within the respective prescribed periods, the Representatives notify the
Company and the Selling Stockholders that the Representatives have so arranged for the purchase of
such Shares, or the Company and the Selling Stockholders notify the Representatives that they have
so arranged for the purchase of such Shares, the Representatives or the Company and the Selling
Stockholders shall have the right to postpone the 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 the Representatives’ 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 the Representatives and the Company and the Selling Stockholders 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 the Time
of Delivery, then the Company and the Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at the 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 the Representatives and the Company and the Selling Stockholders as
provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased
exceeds one-eleventh of the aggregate number of all of the Shares to be purchased at the Time of
Delivery, or if the Company and the Selling Stockholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Shares of a
23
defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or the Selling Stockholders,
except for the expenses to be borne by the Company and the Selling Stockholders 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 and warranties of the Company, the
Selling Stockholders and the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any of the
Selling Stockholders, or any officer or director or controlling person of the Company, or any
controlling person of any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company
nor the Selling Stockholders shall 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 and the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in
writing by the Representatives, 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 in respect
of the Shares not so delivered except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, the Representatives 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 the Representatives; and in all
dealings with any Selling Stockholder hereunder, the Underwriters and the Company shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorneys-in-Fact for such Selling Stockholder.
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 the
Representatives in care of ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Registration Department and in care of ▇.▇. ▇▇▇▇▇▇ Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Equity Syndicate Desk, facsimile: ▇▇▇-▇▇▇-▇▇▇▇; if to any
Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to
attorneys-in-fact for such Selling Stockholder at its address set forth in Schedule II hereto; and
if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth on the cover of the Registration Statement, Attention: Secretary;
provided, however, that any notice to an Underwriter pursuant to Section 9(d) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters’ Questionnaire or telex constituting such Questionnaire, which address
will be supplied to the Company or the Selling Stockholders by the Representatives on request. 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
24
and address of their respective clients, as well as other information that will allow the
Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and the Selling Stockholders and, to the extent provided in Section 9
hereof, the officers and directors of the Company and each person who controls the Company, any
Selling Stockholder 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 and the Selling
Stockholders, 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.
Without limiting the applicability of Section 2 hereof or any other provision of this
Agreement, with respect to any Underwriter who is or is affiliated with any person or entity
engaged to act as an investment adviser on behalf of a client who has a direct or indirect interest
in the Shares being sold by a Selling Stockholder, the Shares being sold to such Underwriter shall
not include any Shares attributable to such client (with any such Shares instead being allocated
and sold to the other Underwriters) and, accordingly, the fees or other amounts received by such
Underwriter in connection with the transactions contemplated hereby shall not include any fees or
other amounts attributable to such client (and, if there is any unsold allotment in the offering at
the Time of Delivery, such unsold allotment in respect of Shares attributable to such client shall
be allocated solely to Underwriters not affiliated with such client).
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 AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE
OF NEW YORK. The Company agrees that any suit or proceeding arising in respect of this Agreement
or our engagement will be tried exclusively in the U.S. District Court for the Southern District of
New York or, if that court does not have subject matter jurisdiction, in any state court
25
located in The City and County of New York and the Company agrees to submit to the
jurisdiction of, and to venue in, such courts.
19. The Company, each of the Selling Stockholders and each of the Underwriters hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company and the Selling Stockholders
are 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 and the Selling Stockholders 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 six
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and each of the Selling Stockholders. 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 and the Selling Stockholders for examination, upon request, but without warranty on your
part as to the authority of the signers thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling
Stockholder represents by so doing that he or she has been duly appointed as Attorney-in-Fact by
such Selling Stockholder pursuant to a validly existing and binding Power of Attorney that
authorizes such Attorney-in-Fact to take such action.
[Signature pages follow]
26
Very truly yours, LPL Investment Holdings Inc. |
||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Secretary and Vice President | |||
| Selling Stockholders |
||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Attorney-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to this Agreement. | |||
27
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
▇.▇. ▇▇▇▇▇▇ Securities LLC
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| Title: Vice President |
On behalf of each of the Underwriters
28
SCHEDULE I
| Total Number of | ||||
| Shares | ||||
| Underwriter | to be Purchased | |||
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
1,750,062 | |||
▇.▇. ▇▇▇▇▇▇ Securities LLC |
1,750,062 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
1,145,440 | |||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated |
890,904 | |||
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & Co., LLC |
96,608 | |||
Citigroup Global Markets Inc. |
96,608 | |||
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. |
96,608 | |||
Lazard Capital Markets LLC |
96,608 | |||
Macquarie Capital (USA) Inc. |
96,608 | |||
Sandler ▇’▇▇▇▇▇ & Partners, L.P. |
96,608 | |||
UBS Securities LLC |
96,608 | |||
Total |
6,212,724 | |||
Schedule I-1
SCHEDULE II
| Total Number | ||||
| of Shares to be | ||||
| The Selling Stockholders (a): | Sold | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
214,400 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
981,148 | |||
Pacific Life Insurance Company |
2,645,500 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
600,000 | |||
GS Mezzanine Partners III Onshore |
561,352 | |||
GS Mezzanine Partners II LP |
223,159 | |||
GS Mezzanine Partners III |
187,491 | |||
▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ Grantor |
5,000 | |||
GS Mezzanine Partners II |
68,057 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
54,760 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
30,000 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
6,300 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ |
16,072 | |||
▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ Foundation |
15,000 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇ |
13,587 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ Irrevocable Trust |
6,954 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
13,370 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ |
12,789 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
11,000 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
5,000 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
3,000 | |||
▇▇▇▇▇▇ ▇ ▇▇▇ Irrevocable Trust |
5,216 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ Irrevocable Trust |
5,216 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ |
2,500 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ |
7,000 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
8,757 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ |
2,942 | |||
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ |
6,200 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
7,000 | |||
▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇ |
7,740 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
7,630 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
2,300 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
7,035 | |||
▇▇▇▇ ▇ ▇▇▇▇ |
7,000 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
6,797 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
5,500 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
1,950 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
6,820 | |||
Israel T Jacob |
2,080 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
4,290 | |||
Schedule II-1
| Total Number | ||||
| of Shares to be | ||||
| The Selling Stockholders (a): | Sold | |||
▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
6,000 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
4,098 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
5,000 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
6,786 | |||
Jem & Sem Grantor Trust |
6,740 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ |
2,000 | |||
▇▇▇▇▇ ▇ ▇▇▇▇ |
500 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
3,470 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
6,566 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
6,160 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇ |
5,873 | |||
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
3,450 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
5,930 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
4,000 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
5,526 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ |
2,000 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇ |
2,140 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
5,155 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
3,350 | |||
▇▇▇▇ E Day Jr |
1,000 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,000 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ |
2,453 | |||
▇▇▇▇ ▇▇▇▇▇▇ |
3,533 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,000 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
4,655 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇ |
4,200 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,430 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇ |
4,790 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
5,000 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
4,000 | |||
▇▇▇▇ ▇ ▇▇▇▇▇ |
3,581 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
4,760 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
4,640 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,655 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ |
4,650 | |||
▇▇▇▇ ▇ ▇▇▇▇▇ |
1,000 | |||
▇▇▇▇ ▇ ▇▇▇▇ |
4,550 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
3,500 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
1,420 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,200 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ |
4,530 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,995 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,210 | |||
▇▇▇▇▇ ▇ ▇▇▇▇ |
4,186 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ |
4,179 | |||
Schedule II-2
| Total Number | ||||
| of Shares to be | ||||
| The Selling Stockholders (a): | Sold | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
3,000 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
3,822 | |||
▇▇▇ ▇ ▇▇▇▇▇ |
4,000 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
3,800 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
4,000 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,000 | |||
▇▇▇▇▇ ▇ ▇▇▇▇ |
2,000 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
1,000 | |||
▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,785 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ |
2,800 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ |
1,300 | |||
J ▇▇▇▇▇ ▇▇▇▇▇ |
4,013 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
1,800 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
1,845 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
3,640 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ |
3,600 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,200 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ |
1,760 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇ |
3,321 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
3,426 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ |
2,350 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
3,314 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
3,300 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
3,503 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
3,066 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,500 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,500 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
▇▇▇ | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
3,000 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,964 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
3,000 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇ |
3,090 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
700 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,737 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ |
2,730 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ |
1,000 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,471 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,884 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
2,859 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
2,559 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
800 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,667 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
2,604 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ |
2,569 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,555 | |||
Schedule II-3
| Total Number | ||||
| of Shares to be | ||||
| The Selling Stockholders (a): | Sold | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,345 | |||
▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇ |
2,481 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,200 | |||
Masumi H Tripoli |
2,405 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,422 | |||
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
2,432 | |||
▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇ |
2,600 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ |
2,397 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,196 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,271 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,544 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
2,000 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,296 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
1,000 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,000 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,194 | |||
▇▇▇▇▇ ▇ ▇▇▇▇ |
2,200 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,000 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,270 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
2,229 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,201 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,219 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,370 | |||
▇▇▇▇ ▇▇▇▇▇▇ |
2,338 | |||
▇▇▇▇▇▇ ▇ ▇▇▇ |
1,000 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
1,984 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,313 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,220 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ |
1,072 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,117 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,170 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,082 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
1,160 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,037 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,089 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
2,142 | |||
▇▇▇▇▇ ▇ ▇▇▇▇ |
202 | |||
▇▇▇▇▇▇ ▇ ▇▇▇ ▇▇ |
1,921 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇ |
2,010 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
2,080 | |||
▇▇▇▇ ▇ ▇▇▇ ▇▇ |
1,914 | |||
▇▇▇▇▇ ▇ ▇▇▇▇ |
1,200 | |||
▇▇▇▇▇▇ Credit Union |
2,011 | |||
Western Federal Credit Union |
2,011 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
500 | |||
Schedule II-4
| Total Number | ||||
| of Shares to be | ||||
| The Selling Stockholders (a): | Sold | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ Tr Ua Jul 02 01 |
2,000 | |||
▇▇▇ ▇ ▇▇▇▇▇▇▇ |
1,932 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,711 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
1,743 | |||
▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,850 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,841 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,178 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ |
1,813 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ |
1,750 | |||
▇▇▇ ▇ ▇▇▇▇▇ ▇▇ |
1,523 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,491 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,470 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,431 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
1,526 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
1,487 | |||
▇▇▇▇ ▇ ▇▇▇▇ |
1,498 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
1,487 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇ |
1,452 | |||
▇▇▇▇▇ ▇ ▇▇▇▇ |
1,200 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
1,370 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
1,316 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
1,305 | |||
▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ |
1,302 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ N A |
1,020 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇ |
1,078 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,078 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
1,046 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ |
970 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
1,008 | |||
▇▇▇▇ ▇ ▇▇▇▇▇ |
1,071 | |||
▇▇▇▇ ▇ ▇▇▇▇ |
730 | |||
▇▇▇▇ ▇▇▇▇▇▇▇ |
1,057 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
910 | |||
Michigan Schools/Government |
1,023 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
1,015 | |||
▇▇▇▇ ▇ ▇▇▇▇▇ |
1,008 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
1,000 | |||
▇▇▇▇▇ ▇▇▇▇▇ |
1,000 | |||
▇▇▇▇ ▇ ▇▇▇▇▇ |
950 | |||
Safe Credit Union |
940 | |||
▇▇▇ ▇▇▇▇▇▇▇▇▇ |
938 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇ |
▇▇▇ | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
▇▇▇ | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
875 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
580 | |||
Schedule II-5
| Total Number | ||||
| of Shares to be | ||||
| The Selling Stockholders (a): | Sold | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
300 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ |
497 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
686 | |||
▇▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
410 | |||
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
623 | |||
▇▇-▇▇▇▇ ▇ ▇▇▇▇▇▇ |
▇▇▇ | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ |
▇▇▇ | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
318 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ |
357 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
460 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
329 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
357 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ |
350 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
78 | |||
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
329 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇ |
320 | |||
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
252 | |||
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ |
91 | |||
▇▇▇▇▇ ▇ ▇▇▇▇▇ |
190 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ |
91 | |||
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
110 | |||
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
60 | |||
Total |
6,212,724 | |||
(a) Each Selling Stockholder has appointed ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
The address for the Attorneys-in-Fact is: c/o LPL Investment Holdings Inc.,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Schedule II-6
SCHEDULE III
| (a) | Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package |
None
| (b) | Additional documents incorporated by reference |
None
| (c) | Information other than the Pricing Prospectus that comprise the Pricing Disclosure Package |
The initial public offering price per share for the Shares is $34.85.
Schedule III-1
SCHEDULE IV
| • | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
| • | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
| • | GS Mezzanine Partners III Onshore Fund, L.P. |
| • | GS Mezzanine Partners II L.P. |
| • | GS Mezzanine Partners II Offshore, L.P. |
| • | GS Mezzanine Partners III Offshore Fund, L.P. |
Schedule IV-1
SCHEDULE V
| Name of Holder | Address | |
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLC
|
c/▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLC, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
TPG Partners, IV, L.P.
|
c/o TPG Capital, L.P., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
||
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
||
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
||
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
||
▇▇▇ ▇. ▇▇▇▇▇▇ |
||
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
||
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
||
▇▇▇▇▇ ▇▇▇▇▇ |
||
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
||
▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
||
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
| * | Unless otherwise indicated, the address for each of the holders in the table above is c/o LPL Investment Holdings Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. |
Schedule V-1
ANNEX I
(a) LPL Holdings, Inc., a Massachusetts corporation
(b) LPL Financial LLC, a California limited liability company
(c) UVEST Financial Services, Inc., a North Carolina corporation
Annex I-1