22,727,272 Shares The Goodyear Tire & Rubber Company Common Stock EQUITY UNDERWRITING AGREEMENT
Exhibit 1.1
22,727,272 Shares
The Goodyear Tire & Rubber Company
Common Stock
May 16, 2007
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
Xxxxxxx, Xxxxx & Co.
As Representatives of the
Several Underwriters
Citigroup Global Markets Inc.
Xxxxxxx, Xxxxx & Co.
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Goodyear Tire & Rubber Company, an Ohio corporation (the “Company”), proposes, subject to
the terms and conditions stated herein, to issue and sell to the several underwriters (the
“Underwriters”) named in Schedule I hereto for whom you are acting as representatives (the
“Representatives”) an aggregate of 22,727,272 shares (the “Firm Shares”) of the Company’s common
stock, no par value (the “Common Stock”). The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in Schedule I hereto. The
Company also proposes to sell at the Underwriters’ option an aggregate of up to 3,409,091
additional shares of the Company’s Common Stock (the “Option Shares”) as set forth below.
As the Representatives, you have advised the Company (a) that you are authorized to enter into
this Agreement on behalf of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Firm Shares set forth
opposite their respective names in Schedule I, plus their pro rata portion of the Option Shares if
you elect to exercise the over-allotment option in whole or in part for the accounts of the several
Underwriters.
The Firm Shares and the Option Shares (to the extent the aforementioned option is exercised) are
herein collectively called the “Shares.”
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants to each of the Underwriters as follows:
(a) 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. 333-142784) in respect of the Shares,
including a form of prospectus (the “Base Prospectus”), has been prepared and filed by the Company
not earlier than three years prior to the date hereof, in conformity with the requirements of the
Act and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange
Commission (the “Commission”) thereunder. The Company and the transactions contemplated by this
Agreement meet the requirements and comply with the conditions for the use of Form S-3. Copies of
such registration statement, including any amendments thereto, the Base Prospectus, as supplemented
by any preliminary prospectus (including any preliminary prospectus supplement) relating to the
Shares filed with the Commission pursuant to Rule 424(b) under the Act and including the documents
incorporated in the Base Prospectus by reference (a “Preliminary Prospectus”), and the exhibits,
financial statements and schedules to such registration statement, in each case as finally amended
and revised, have heretofore been delivered by the Company to you. Such registration statement,
together with any post-effective amendment thereto filed by the Company pursuant to Rules 413(b)
and 462(f) under the Act, is herein referred to as the “Registration Statement,” which shall be
deemed to include all information omitted therefrom in reliance upon Rules 430A, 430B or 430C under
the Act and contained in the Prospectus referred to below. The Registration Statement has become
effective under the Act and no post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement. “Prospectus” means the prospectus in the form first used
to confirm sales of Shares and filed with the Commission pursuant to and within the time limits
described in Rule 424(b) under the Act and in accordance with Section 4(a) hereof. Any reference
herein to the Registration Statement, any Preliminary Prospectus or to the Prospectus or to any
amendment or supplement to any of the foregoing documents shall be deemed to refer to and include
any documents incorporated by reference therein as of each effective date of such Registration
Statement or the date of such Preliminary Prospectus or the Prospectus, as applicable, and, in the
case of any reference herein to the Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rule 424(b) under the Act, and prior to
the termination of the offering of the Shares by the Underwriters.
(b) As of the Applicable Time (as defined below) and as of the Closing Date or the Option
Closing Date, as the case may be, neither (i) the General Use Free Writing Prospectus(es) (as
defined below) issued at or prior to the Applicable Time, the Statutory Prospectus (as defined
below) and the information included on Schedule II hereto, all considered together (collectively, the
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“General Disclosure Package”), nor (ii) any individual Limited Use Free Writing Prospectus (as
defined below), when considered together with the General Disclosure Package, included or will
include any untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the Statutory Prospectus or any Issuer
Free Writing Prospectus, in reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of any Underwriter through the Representatives, specifically for use
therein, it being understood and agreed that the only such information is that described in Section
14 herein. As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 4:30 pm (New York time) on the date of this Agreement or such other
time as agreed to by the Company and the Representatives.
“Statutory Prospectus” means the Base Prospectus, as amended and supplemented by any document
incorporated by reference therein and any prospectus supplement, in each case, immediately prior to
the Applicable Time.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Shares in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g) under the Act.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule III to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
(c) Each of the Company and its subsidiaries listed on Schedule V hereto has been duly
organized and is validly existing and in good standing under the laws of their respective
jurisdictions of organization, with all requisite power and authority (corporate and other)
necessary to own its properties and conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus, and has been duly qualified as a
foreign corporation or limited liability company for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no liability or
disability that is material to the Company and its subsidiaries taken as a whole by reason of the
failure to be so qualified or in good standing in any such jurisdiction. As used in this
Agreement, a “subsidiary” of any person means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of shares of capital stock or
other interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned
or controlled, directly or indirectly, by: (i) such person, (ii) such person and one or more
subsidiaries of such person or (iii) one or more subsidiaries of such person.
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(d) The Company has an authorized capitalization as set forth in the Registration Statement
and the Prospectus (and any similar section or information contained in the General Disclosure
Package) 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; the Shares to be issued and sold by
the Company have been duly authorized and when issued and paid for as contemplated herein will be
validly issued, fully paid and non-assessable, and no preemptive rights of stockholders exist with
respect to any of the Shares or the issue and sale thereof; the Shares will conform in all material
respects to the description thereof contained in the General Disclosure Package, the Registration
Statement and the Prospectus; neither the filing of the Registration Statement nor the offering or
sale of the Shares as contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied for or relating to the registration of any shares of Common
Stock; and all of the issued shares of capital stock or other equity interests of each Significant
Subsidiary (for purposes of this Section, as defined in Rule 1-02 of Regulation S-X under the
Securities Exchange Act of 1934 (the “Exchange Act”)) 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 Registration Statement, the General Disclosure
Package and the Prospectus) the capital stock or other equity interests of each Significant
Subsidiary is owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other claim of any third
party, other than those which are “Permitted Liens” as defined in the Indenture dated November 21,
2006 among the Company, the subsidiaries party thereto and Well Fargo, N.A., as trustee. Except as
described in the Registration Statement, the General Disclosure Package and the Prospectus, there
are no outstanding subscriptions, rights, warrants, calls or options to acquire, or instruments
convertible into or exchangeable for, or agreements or understandings with respect to the sale or
issuance of, any shares of capital stock of or other equity or other ownership interest in the
Company or any of its Significant Subsidiaries.
(e) The Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the
proposed offering of the Shares, and no proceeding for that purpose or pursuant to Section 8A of
the Act has been instituted or, to the Company’s knowledge, threatened by the Commission. The
Registration Statement, as of each effective date and at the date hereof, the Closing Date and any
Option Closing Date, and the Prospectus, as of its date and at the date hereof, the Closing Date
and any Option Closing Date, complied and will comply in all material respects with the
requirements of the Act and the Rules and Regulations. The documents incorporated by reference in
the Prospectus, at the time filed with the Commission conformed in all material respects to the
requirements of the Exchange Act or the Act, as applicable, and the rules and regulations of the
Commission thereunder. The Registration Statement and any amendment thereto as of each effective
date and at the date hereof, the Closing Date and any Option Closing Date, did not contain, and
will not contain, any untrue statement of a material fact and did not omit, and will not omit, to
state a material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus and any amendments and supplements thereto as of its
date and at the date hereof, the Closing Date and any Option Closing
Date, did not contain, and
will not
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contain, any untrue statement of a material fact and did not omit, and will not omit, to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the Company makes
no representations or warranties as to information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of any Underwriter
through the Representatives, specifically for use therein, it being understood and agreed that the
only such information is that described in Section 14 herein.
(f) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Shares, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement or the Prospectus, including any document incorporated by reference
and any Prospectus Supplement deemed to be a part thereof that has not been superseded or modified;
provided, however, that the Company makes no representations or warranties as to information
contained in or omitted from any Issuer Free Writing Prospectus, or any amendment or supplement
thereto, in reliance upon, and in conformity with, written information furnished to the Company by
or on behalf of any Underwriter through the Representatives, specifically for use therein, it being
understood and agreed that the only such information is that described in Section 14 herein.
(g) The Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the offering and sale of the Shares other than any Preliminary
Prospectus, the Prospectus and other materials, if any, permitted under the Act and consistent with
Section 4(b) below. The Company will file with the Commission all Issuer Free Writing Prospectuses
in the time and manner required under Rules 163(b)(2) and 433(d) under the Act.
(h) (i) At the time of filing the Registration Statement, (ii) 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
and (iii) at the date hereof, the Company is a “well-known seasoned issuer” as defined in Rule 405
under the Act. The Company has not received from the Commission any notice pursuant to Rule
401(g)(2) under the Act objecting to the use of the automatic shelf registration form.
(i) 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 and (ii) as of the date hereof (with such date being used as the determination
date for purposes of this clause(ii)), the Company was not and is not an “ineligible issuer” (as
defined in Rule 405 under the Act, without taking into account any determination by the Commission
pursuant to Rule 405 under the Act that it is not necessary that the Company be considered an
ineligible issuer), including, without limitation, for purposes of
Rules 164 and 433 under the Act with respect to the offering of the Shares as contemplated by the
Registration Statement.
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(j) The financial statements and the related notes thereto included or incorporated by
reference in the Registration Statement, General Disclosure Package and the Prospectus present
fairly in all material respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their operations and the
changes in their cash flows for the periods specified, in each case, on a consolidated basis; such
financial statements have been prepared in conformity with United States generally accepted
accounting principles (“GAAP”) applied on a consistent basis throughout the periods covered
thereby; and the other financial information included or incorporated by reference in the
Registration Statement, General Disclosure Package and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents fairly in all material respects
the information shown thereby.
(k) PricewaterhouseCoopers LLP, who have certified certain consolidated financial statements
of the Company and its consolidated subsidiaries incorporated by reference in, the Registration
Statement, the General Disclosure Package and the Prospectus, are an independent public registered
accounting firm with respect to the Company and its subsidiaries as required by the Act and the
rules and regulations of the Commission thereunder and within the meaning of the Rules and
Regulations and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(l) Other than as set forth in the Registration Statement, the General Disclosure Package and
the Prospectus, since the date of the latest audited financial statements included or incorporated
by reference in the Registration Statement, the General Disclosure Package and the 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.
(m) Except as would not reasonably be expected to have a material adverse effect on the
business, properties, financial position or results of operations of the Company and its
subsidiaries, taken as a whole, (a “Material Adverse Effect”), the Company and its subsidiaries
maintain systems of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(n) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) of 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.
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(o) Except as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, there are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is
the subject, which would be required to be disclosed pursuant to Item 103 of Regulation S-K under
the Exchange Act in the Company’s Annual Report on Form 10-K if such report were filed on the date
hereof; and, to the best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(p) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects, except (i) such as are described in the
Registration Statement, the General Disclosure Package and the Prospectus, (ii) such as do not
materially affect the value of such property and do not interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries, (iii) such as could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect or (iv) Permitted
Liens; and any real property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries taken as a whole in any material respect.
(q) The Company and its subsidiaries have paid all federal, state, local and foreign taxes
(except for such taxes that are not yet delinquent or that are being contested in good faith and by
proper proceedings) and filed all tax returns required to be paid or filed through the date hereof,
except in each case where the failure to pay or file would not reasonably be expected to have a
Material Adverse Effect; and except as otherwise disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus or as would not reasonably be expected to have a
Material Adverse Effect, there is no tax deficiency that has been, or could reasonably be expected
to be, asserted against the Company or any of its subsidiaries or any of their respective
properties or assets.
(r) Neither the Company nor any of the subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by reference in the Registration
Statement, any loss or interference with its business that is material to the Company and the
subsidiaries taken as a whole 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, except as
set forth or contemplated in the Registration Statement, General Disclosure Package and the
Prospectus; and, since the date as of which information is given in the Registration Statement,
there has not been any change in the capital stock (other than issuances pursuant to equity
incentive plans) or increase in long-term debt of the Company or any of the subsidiaries
that is material to the Company and its subsidiaries taken as a whole, or any material adverse
change, or any development that would reasonably be expected to result in a material adverse
change, in or affecting the business, properties, financial position or results of operations of
the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the
Registration Statement, General Disclosure Package and the Prospectus.
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(s) Since the date of the latest audited financial statements of the Company included or
incorporated by reference in the Registration Statement, neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is material to the Company and its
subsidiaries, taken as a whole, or incurred any liability or obligation, direct or contingent, that
is material to the Company and its subsidiaries, taken as a whole, other than as set forth in the
Registration Statement, General Disclosure Package and the Prospectus.
(t) Neither the Company nor any of its subsidiaries is (i) in violation of its Certificate of
Incorporation or By-laws, (ii) in default in the performance or observance of any obligation,
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 (iii) in violation of any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries 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, in the case of clauses (ii) and
(iii), for any default or violation that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(u) The execution, delivery and performance by the Company of this Agreement, the issuance
and sale of the Shares and the compliance by the Company with all of the provisions of this
Agreement, and the consummation of the transactions herein contemplated will not (i) conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or (iii) result in any violation of any law or statute or
any judgment, 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 or assets,
except, in the case of clauses (i) and (iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; and no consent, approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and sale of the Shares or
the consummation by the Company of the transactions contemplated by this Agreement, except such as
have been obtained or made by the Company and are in full force and effect under the Act and for
such consents, approvals, authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws or under the securities
laws of Canada or any province thereof or from the National Association of Securities Dealers, Inc.
in connection with the purchase and resale of the Shares by the underwriters.
(v) This Agreement has been duly authorized, executed and delivered by the Company.
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(w) The Company and its subsidiaries own, license or otherwise possess adequate rights to use
all material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) necessary for the conduct of their respective businesses, except where the failure
to own, license or otherwise possess such rights would not reasonably be expected to have a
Material Adverse Effect; and the conduct of their respective businesses will not conflict in any
respect with any such rights of others, and the Company and, to the best of the Company’s
knowledge, its subsidiaries, have not received written notice of any claim of infringement of or
conflict with any such rights of others, except in each case such conflicts or infringements that,
if adversely determined against the Company or any of its subsidiaries, would not reasonably be
expected to have a Material Adverse Effect.
(x) The Company and its subsidiaries possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that are necessary for the ownership
or lease of their respective properties or the conduct of their respective businesses as described
in the Registration Statement, the General Disclosure Package and the Prospectus, except where the
failure to possess or make the same would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and except as described in the Registration Statement,
the General Disclosure Package and the Prospectus or as would not reasonably be expected to have a
Material Adverse Effect, neither the Company nor any of its subsidiaries has received written
notice of any revocation or modification of any such license, certificate, permit or authorization
or has any reason to believe that any such license, certificate, permit or authorization will not
be renewed in the ordinary course.
(y) The statements set forth in the Registration Statement, the General Disclosure Package
and the Prospectus under the caption “Description of Our Common Stock”, insofar as they purport to
constitute a summary of the Company’s capital stock, and under the caption “Material United States
Federal Income and Estate Tax Consequences to Non-U.S. Holders”, insofar as they purport to
describe the provisions of the laws and documents referred to therein, are accurate, complete and
fair in all material respects.
(z) Prior to the date hereof, neither the Company nor any of its affiliates (as defined in
Rule 144 under the Act) has taken any action which is designed to or which has constituted or which
might have been expected to cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Shares.
(aa) Neither the Company nor any subsidiary of the Company is, and after giving effect to the
offering and sale of the Shares, none of them will be an “investment company,” as such term is
defined in the United States Investment Company Act of 1940, as amended (the “1940 Act”).
(bb) Except as would not reasonably be expected to have a Material Adverse Effect, the
Company and its subsidiaries have insurance covering their respective properties, operations,
personnel and businesses, which insurance is in amounts and insures against such
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losses and risks
as are customary among companies of established reputation engaged in the same or similar
businesses and operating in the same or similar locations; and neither the Company nor, to the best
of the Company’s knowledge, any of the its subsidiaries, has (i) received written notice from any
insurer or agent of such insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) 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 at reasonable cost from similar insurers as may be necessary to continue its
business, except, in the case of clause (ii), as would not reasonably be expected to have a
Material Adverse Effect.
(cc) Except as would not reasonably be expected to have a Material Adverse Effect, each
employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by
the Company or any of its affiliates for employees or former employees of the Company and its
affiliates is in compliance in all material respects with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any such
plan excluding transactions effected pursuant to a statutory or administrative exemption; and for
each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of
ERISA, except as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, the fair market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions, and no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or not waived.
(dd) The Company and its subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the
protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) have not received notice of
any actual or potential liability for the investigation or remediation of any disposal or release
of hazardous or toxic substances or wastes, pollutants or contaminants, except in any such case for
any such failure to comply with, or failure to receive required permits, licenses or approvals, or
liability, as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ee) The Shares have been approved for listing subject to notice of issuance on the New York
Stock Exchange.
(ff) None of the information on (or hyperlinked from) the Company’s website at
xxx.xxxxxxxx.xxx, or any website of any subsidiary of the Company maintained or supported by the
Company, includes or constitutes a “free writing prospectus” as defined in Rule 405 under the
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Act (other than any information that has been filed by the Company with the Commission in accordance
with Rule 433 under the Act).
(gg) Except as would not reasonably be expected to have a Material Adverse Effect, neither
the Company nor any of its subsidiaries nor, to the best knowledge of the Company and its
subsidiaries, no director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(hh) Except as described in the Registration Statement, the General Disclosure Package and the
Prospectus, no labor disturbance by or dispute with employees of the Company or any of its
subsidiaries exists or, to the best knowledge of the Company, is contemplated or threatened, in
each case that would be reasonably expected to have a Material Adverse Effect.
2. Purchase, Sale and Delivery of the Firm Shares.
(a) On the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to issue and sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to purchase, at a price of
$31.9275 per share, the number of Firm Shares set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with Section 10 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in Federal (same day)
funds against delivery thereof to the Representatives for the several accounts of the
Underwriters. Such payment and delivery are to be made through the facilities of The Depository
Trust Company, New York, New York at 10:00 a.m., New York time, on the third business day after the
date of this Agreement or at such other time and date not later than five business days thereafter
as you and the Company shall agree upon, such time and date being herein referred to as the
“Closing Date.” (As used herein, “business day” means a day on which the New York Stock Exchange
is open for trading and on which banks in New York are open for business and are not permitted by
law or executive order to be closed.)
(c) In addition, on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company hereby grants an option to the
several Underwriters to purchase the Option Shares at the price per share as set forth in the first
paragraph of this Section 2. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) at any time, from time to
time (but no more than twice without the Company’s consent) thereafter within 30 days after the
date of this Agreement, by you, as Representatives of the several Underwriters, to the Company
setting forth the number of Option Shares as to which the several Underwriters are exercising the
option and the time and date at which such certificates are to be delivered. The time and date at
which
11
certificates for Option Shares are to be delivered shall be determined by the Representatives
but shall not be earlier than three nor later than 10 full business days after the exercise of such
option, nor in any event prior to the Closing Date (such time and date being herein referred to as
the “Option Closing Date”). If the date of exercise of the option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. The
number of Option Shares to be purchased by each Underwriter shall be in the same proportion to the
total number of Option Shares being purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted by you in such manner as to avoid
fractional shares. The option with respect to the Option Shares granted hereunder may be exercised
only to cover over-allotments in the sale of the Firm Shares by the Underwriters. You, as
Representatives of the several Underwriters, may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the Company. To the extent, if any,
that the option is exercised, payment for the Option Shares shall be made on the Option Closing
Date in Federal (same day funds) through the facilities of The Depository Trust Company in New
York, New York drawn to the order of the Company.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public offering of the Firm
Shares as soon as the Representatives deem it advisable to do so. The Firm Shares are to be
initially offered to the public at the initial public offering price set forth in the Prospectus.
The Representatives may from time to time thereafter change the public offering price and other
selling terms.
It is further understood that you will act as the Representatives for the Underwriters in the
offering and sale of the Shares in accordance with a Master Agreement Among Underwriters entered
into by you and the several other Underwriters.
4. Covenants of the Company.
The Company covenants and agrees with the several Underwriters that:
(a) The Company will (i) prepare and timely file with the Commission under Rule 424(b)
(without reliance on Rule 424(b)(8)) under the Act the Prospectus in a form approved by the
Representatives containing information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (ii) during the
Prospectus Delivery Period (as defined below), not file any amendment to the Registration Statement
or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or
document incorporated by reference therein of which the Representatives shall not previously have
been advised and furnished with a copy or to which the Representatives shall have reasonably
objected in writing or which is not in compliance with the Rules and Regulations and (iii) file on
a timely basis all reports and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the Prospectus and during the
Prospectus Delivery Period.
12
(b) The Company will (i) not make any offer relating to the Shares that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 under the Act) required to be filed by the Company with the Commission under
Rule 433 under the Act unless the Representatives approve its use in writing prior to first use
(each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the
Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing
Prospectus(es) included in Schedule III hereto and the Issuer Free Writing Prospectus filed by the
Company in accordance with Rule 433 under the Act on May 15, 2007, (ii) treat each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of
Rules 163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including
the requirements relating to timely filing with the Commission, legending and record keeping and
(iv) not take any action that would result in an Underwriter or the Company being required to file
with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or
on behalf of such Underwriter that such Underwriter otherwise would not have been required to file
thereunder.
(c) The Company will advise the Representatives promptly (i) when any post-effective
amendment to the Registration Statement or new registration statement relating to the Shares shall
have become effective, or any supplement to the Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request of the Commission for amendment
of the Registration Statement or the filing of a new registration statement or any amendment or
supplement to the General Disclosure Package or the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for any additional information, and
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or such new registration statement or any order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the
institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company
will use its best efforts to prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued.
(d) If at any time during the Prospectus Delivery Period the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to
use the automatic shelf registration statement form, the Company will (i) promptly notify the
Representatives, (ii) promptly file a new registration statement or post-effective amendment on the
proper form relating to the Shares, in a form satisfactory to the Representatives, (iii) use its
best efforts to cause such registration statement or post-effective amendment to be declared
effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to
Rule 462 under the Act), and (iv) promptly notify the Representatives of such effectiveness. The
Company will take all other action necessary or appropriate to permit the public offering and sale
of the Shares to continue as contemplated in the Registration Statement that was the subject of the
notice under Rule 401(g)(2) under the Act or for which the Company has otherwise become ineligible.
References herein to the Registration Statement relating to the Shares shall include such new
registration statement or post-effective amendment, as the case may be.
13
(e) The Company agrees to pay the required filing fees to the Commission 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 (including, if
applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule
456(b)(1)(ii), either in a post-effective amendment to the Registration Statement or on the cover
page of a prospectus filed pursuant to Rule 424(b) under the Act).
(f) The Company will 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 the Representatives may reasonably 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 offering and resale of the Shares, provided that in connection therewith
the Company shall not be required (i) to qualify as a foreign corporation, (ii) to file a general
consent to service of process in any jurisdiction or (iii) to take any action that would subject
itself to taxation in any jurisdiction if it is not otherwise so subject.
(g) The Company will deliver to, or upon the order of, the Representatives, from time to
time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request.
The Company will deliver to, or upon the order of, the Representatives, from time to time, as many
copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The
Company will deliver to, or upon the order of, the Representatives during the period when delivery
of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the
“Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The
Company will deliver to the Representatives at or before the Closing Date, four signed copies of
the Registration Statement and all amendments thereto including all exhibits filed therewith, and
will deliver to the Representatives such number of copies of the Registration Statement (including
such number of copies of the exhibits filed therewith that may reasonably be requested), including
documents incorporated by reference therein, and of all amendments thereto, as the Representatives
may reasonably request.
(h) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act,
and the rules and regulations of the Commission thereunder, so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus.
If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule
173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event
shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of
the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement
the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with
the Commission an appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange
Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended
or supplemented
14
will not, in the light of the circumstances when it is so delivered, be misleading,
or so that the Prospectus will comply with the law.
(i) If the General Disclosure Package is being used to solicit offers to buy the Shares at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
as a result of which, in the judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the Registration Statement then
on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to
comply with any law, the Company promptly will either (i) prepare, file with the Commission (if
required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to
the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the General Disclosure Package
so that the General Disclosure Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or conflict with the Registration Statement then on file, or so that
the General Disclosure Package will comply with law.
(j) The Company will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 16 months after the effective date of the
Registration Statement, an earnings statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of
the Act and the Rule 158 under the Act and will advise you in writing when such statement has been
so made available.
(k) No offering, sale, short sale or other disposition of any shares of Common Stock of the
Company or other securities convertible into or exchangeable or exercisable for shares of Common
Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days
after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder
or with the prior written consent of the Representatives; provided, however, that the Company may
(a) file a registration statement on Form S-8 and may issue shares of its Common Stock and options
to purchase shares of its Common Stock (including, but not limited to,
“reload” options) pursuant to any stock option, stock bonus, employment agreement, employee benefit
plan or other stock plan or arrangement in effect as of the date of this Agreement and (b) may
issue shares of its Common Stock upon the conversion or exchange of convertible securities
outstanding as of the date of this Agreement. Notwithstanding the foregoing, if (1) during the
last 17 days of the 90-day restricted period, the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (2) prior to the expiration of the
90-day restricted period, the Company announces that it will release earnings results during the
16-day period following the last day of the 90-day restricted period, then in each case the
restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day
period beginning on the date of the release of the earnings results or the occurrence of material
news or a material event relating to the Company, as the case may be, unless the Representatives
waive, in writing, such extension.
15
(l) The Company has caused each person listed on Schedule IV hereto to furnish to you, on or
prior to the date of this agreement, a letter or letters, substantially in the form attached hereto
as Exhibit A (each such agreement, a “Lockup Agreement”).
(m) The Company shall apply the net proceeds of its sale of the Shares as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus.
(n) The Company shall not be or become, at any time prior to the expiration of two years
after the Closing Time, an open-end investment company, unit investment trust, closed-end
investment company or face-amount certificate company that is or is required to be registered under
Section 8 of the 0000 Xxx.
(o) The Company will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Common Stock.
5. Covenant of the Underwriters.
Each Underwriter hereby represents and agrees
that:
It has not and will not use, authorize use of, refer to, or participate in the planning for
use of, any “free writing prospectus”, as defined in Rule 405 under the Act (which term includes
use of any written information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that, solely as a result of use by such Underwriter, would not
trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule
433, (ii) any Issuer Free Writing Prospectus listed on Schedule III or prepared pursuant to Section
4(b) above (including any electronic road show), or (iii) any free writing prospectus prepared by
such Underwriter and approved by the Company in advance in writing.
6. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the performance of the
obligations of the Company under this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees and disbursements of counsel
for the Company; any roadshow expenses incurred by the Company for airfare, hotel and other travel
expenses; the cost of printing and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the Issuer Free Writing Prospectuses, the
Prospectus, this Agreement, the supplemental listing application with respect to the Shares on the
New York Stock Exchange, the Blue Sky Survey and any supplements or amendments thereto; the filing
fees of the Commission; the filing fees and expenses (including legal fees and disbursements)
incident to securing any required review by the NASD of the terms of the sale of the Shares; the
Listing Fee of the New York Stock Exchange; and the expenses, including the fees and disbursements
of counsel for the Underwriters, incurred in connection with the qualification of the Shares under
State securities or Blue Sky laws. The Company shall not, however, be required to pay
16
for any of
the Underwriter’s expenses (other than those related to qualification under NASD regulation and
State securities or Blue Sky laws) except that, if this Agreement shall not be consummated because
the conditions in Section 7 hereof are not satisfied, or because this Agreement is terminated by
the Representatives pursuant to Section 12 hereof, or by reason of any failure, refusal or
inability on the part of the Company to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on its part to be performed, unless such
failure, refusal or inability is due primarily to the default or omission of any Underwriter, the
Company shall reimburse the several Underwriters for reasonable out-of-pocket expenses, including
fees and disbursements of counsel, reasonably incurred in connection with investigating, marketing
and proposing to market the Shares or in contemplation of performing their obligations hereunder;
but the Company shall not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Shares.
7. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on the Option Closing Date are subject to the accuracy, as of the
date hereof, the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company contained herein, and to the performance by the
Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments thereto shall have become
effective and the Prospectus and each Issuer Free Writing Prospectus required shall have been filed
as required by Rules 424, 430A, 430B, 430C or 433 under the Act, as applicable, within the time
period prescribed by, and in compliance with, the Rules and Regulations, and any request of the
Commission for additional information (to be included or incorporated by reference in the
Registration Statement or otherwise) shall have been disclosed to the Representatives and complied
with to their reasonable satisfaction. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and no proceedings for
that purpose or pursuant to Section 8A under the Act shall have been taken or, to the knowledge of
the
Company, shall be contemplated or threatened by the Commission and no injunction, restraining order
or order of any nature by a Federal or state court of competent jurisdiction shall have been issued
as of the Closing Date which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or the Option Closing Date,
as the case may be, the opinions of Xxxxxxxxx & Xxxxxxx LLP, counsel for the Company, and Xxxxxxx
Xxxx, Esq., Associate General Counsel and Assistant Secretary of the Company dated the Closing Date
or the Option Closing Date, as the case may be, addressed to the Underwriters, in each case, in
form and substance satisfactory to you, substantially in the forms set forth in Annex I and Annex
II hereto, respectively.
(c) The Representatives shall have received from Cravath, Swaine & Xxxxx LLP, counsel for the
Underwriters, an opinion or opinions dated the Closing Date or the Option Closing Date, as the case
may be, with respect to such matters as the Representatives may reasonably request.
17
(d) You shall have received, on each of the date hereof, the Closing Date and, if applicable,
the Option Closing Date, a letter dated the date hereof, the Closing Date or the Option Closing
Date, as the case may be, in form and substance satisfactory to you, of PricewaterhouseCoopers LLP
confirming that they are an independent registered public accounting firm with respect to the
Company and the subsidiaries within the meaning of the Act and the applicable Rules and Regulations
and the PCAOB and stating that in their opinion the financial statements and schedules examined by
them and included or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus comply in form in all material respects with the applicable
accounting requirements of the Act and the related Rules and Regulations; and containing such other
statements and information as is ordinarily included in accountants’ “comfort letters” to
Underwriters with respect to the financial statements and certain financial and statistical
information contained in the Registration Statement, the General Disclosure Package and the
Prospectus.
(e) The Representatives shall have received on the Closing Date and, if applicable, the
Option Closing Date, as the case may be, a certificate or certificates of an executive officer of
the Company with specific knowledge of the Company’s financial affairs to the effect that, as of
the Closing Date or the Option Closing Date, as the case may be, each of them severally represents
as follows:
(i) The Registration Statement has become effective under the Act
and no stop order
suspending the effectiveness of the Registration Statement or no order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been
issued, and no proceedings for such purpose or pursuant to Section 8A of the Act have been taken or
are, to his or her knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Company contained
in Section 1 hereof are true
and correct as of the Closing Date or the Option Closing Date, as the case may be;
(iii) There has not been any downgrading in the rating accorded
the Company’s debt securities
by Xxxxx’x Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Ratings Group (“S&P”), and
neither Moody’s nor S&P has publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company’s debt securities.
(iv) Since the date as of which information is given in the
Registration Statement, there has
not been any change in the capital stock (other than issuances pursuant to equity incentive plans)
or increase in long-term debt of the Company or any of the subsidiaries that is material to the
Company and its subsidiaries taken as a whole, or any material adverse change, or any development
that would reasonably be expected to result in a material adverse change, in or affecting the
business, properties, financial position or results of operations of the Company and its
subsidiaries, taken as a whole, except as set forth or contemplated in the Registration Statement,
General Disclosure Package and the Prospectus.
18
(f) The Company shall have furnished to the Representatives such further certificates and
documents confirming the representations and warranties, covenants and conditions contained herein
and related matters as the Representatives may reasonably have requested.
(g) The Firm Shares and Option Shares, if any, have been duly listed, subject to notice of
issuance, on the New York Stock Exchange.
(h) The Lockup Agreements described in Section 4(n) are in full force and effect.
If any of the conditions hereinabove provided for in this Section 7 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date,
as the case may be.
In such event, the Company and the Underwriters shall not be under any obligation to each
other (except to the extent provided in Sections 6 and 9 hereof).
8. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the portion of the Shares required to be
delivered as and when specified in this Agreement are subject to the conditions that at the Closing
Date or the Option Closing Date, as the case may be, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and in effect or proceedings therefor initiated
or threatened.
9. Indemnification.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter, the directors and officers of each
Underwriter and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which such Underwriter or any such controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus or any amendment or supplement thereto, (ii) with respect to the Registration
Statement or any amendment or supplement thereto, 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 or (iii) with respect to any Preliminary Prospectus, any Issuer Free
Writing Prospectus, the Prospectus or any amendment or supplement thereto, the omission or
alleged omission to state therein a material fact necessary to make the statements therein
not misleading in the light of the circumstances under which they were made; provided,
19
however, that the Company will 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, any Issuer Free Writing Prospectus, the Prospectus,
or such amendment or supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 14 herein; and
(2) to reimburse each Underwriter, each Underwriter’s directors and officers and each
such controlling person upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage or liability, action or proceeding or in responding
to a subpoena or governmental inquiry related to the offering of the Shares, whether or not
such Underwriter or controlling person is a party to any action or proceeding. In the event
that it is finally judicially determined that the Underwriters were not entitled to receive
payments for legal and other expenses pursuant to this subparagraph, the Underwriters will
promptly return all sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities to which the Company or any
such director, officer, or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any Preliminary Prospectus,
any Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement thereto, (ii)
with respect to the Registration Statement or any amendment or supplement thereto, 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 or (iii) with respect to any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement thereto, the omission
or alleged omission to state therein a material fact or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made; and will reimburse any
legal or other expenses reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each Underwriter will be liable in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission has been made in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the Company by or through the
Representatives specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in Section
14 herein. This indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
20
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to this Section 9, such
person (the “indemnified party”) shall promptly notify the person against whom such indemnity may
be sought (the “indemnifying party”) in writing. No indemnification provided for in Section 9(a)
or (b) shall be available to any party who shall fail to give notice as provided in this Section
9(c) if the party to whom notice was not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise than on account of
the provisions of Section 9(a) or (b). In case any such proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and shall pay as incurred the fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation) the fees and expenses
of the counsel retained by the indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named
parties to any such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them or (iii) the indemnifying
party shall have
failed to assume the defense and employ counsel acceptable to the indemnified party within a
reasonable period of time after notice of commencement of the action. Such firm shall be
designated in writing by you in the case of parties indemnified pursuant to Section 9(a) and by the
Company in the case of parties indemnified pursuant to Section 9(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding of which indemnification may be sought
hereunder (whether or not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action or
proceeding.
(d) To the extent the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under Section 9(a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions or proceedings 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 or
proceedings in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately preceding sentence
is not permitted by
21
applicable law then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 9(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 9(d).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in this Section 9(d)
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), (i) no Underwriter shall be required to contribute any amount
in excess of the underwriting discounts and commissions applicable to the Shares purchased by such
Underwriter and (ii) 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 Section 9(d) to
contribute are several in proportion to their respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus or any supplement or amendment thereto, each party
against whom contribution may be sought under this Section 9 hereby consents to the jurisdiction of
any court having jurisdiction over any other contributing party, agrees that process issuing from
such court may be served upon it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join it as an additional defendant in
any such proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 9 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 9 shall remain
operative and in full force and effect, regardless of any termination of this Agreement. A
successor to any Underwriter, its directors or officers or any person controlling any Underwriter,
or to the
22
Company, its directors or officers, or any person controlling the Company, shall be
entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in
this Section 9.
10. Default by Underwriters.
If on the Closing Date or the Option Closing Date, as the case may be, any Underwriter shall
fail to purchase and pay for the portion of the Shares which such Underwriter has agreed to
purchase and pay for on such date (otherwise than by reason of any default on the part of the
Company), you, as Representatives of the Underwriters, shall use your reasonable efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from
the Company such amounts as may be agreed upon and upon the terms set forth herein, the Shares
which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours you,
as such Representatives, shall not have procured such other Underwriters, or any others, to
purchase the Shares agreed to be purchased by the defaulting Underwriter or Underwriters, then the
Company shall be entitled to a further period of 36 hours within which to procure another party or
parties satisfactory to you to purchase such Shares on such terms. If, after giving effect to any
arrangements for the purchase of Shares by a defaulting Underwriter by you and the Company provided
above, the aggregate number of shares with respect to which such default shall occur does not
exceed 10% of the Shares to be purchased on the Closing Date or the Option Closing date, as the
case may be, the other Underwriters shall be obligated, severally, in proportion to the respective
numbers of Shares which they are obligated to purchase hereunder, to purchase the Shares which such
defaulting Underwriter or Underwriters failed to purchase. If, after giving effect to any
arrangements for the purchase of Shares by a defaulting Underwriter by you and the Company provided
above, the aggregate number of shares of Shares with respect to which such default shall occur
exceeds 10% of the Shares to be purchased on the Closing Date or the Option Closing Date, as the
case may be, the Company or you as the Representatives of the Underwriters will have the right, by
written notice given within the next 36-hour period to the parties to this Agreement, to terminate
this Agreement without liability on the part of the non-defaulting Underwriters or of the Company
except to the extent provided in Sections 6 and 9 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 10, the Representatives or the Company
shall have the right to postpone the Closing Date or Option Closing Date, as the case may be, for a
period not exceeding seven days in order that the required changes in the Registration Statement,
the General Disclosure Package or in the Prospectus or in any other documents or arrangements may
be effected. The term “Underwriter” includes any person substituted for a defaulting Underwriter.
Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
11. Notices.
All communications hereunder shall be in writing and, except as otherwise provided herein,
will be mailed, delivered, telecopied or telegraphed and confirmed as follows: if to the
Underwriters, to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000; Attention: Syndicate Manager, with a copy to Deutsche Bank Securities Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; if to the Company, to the address of
the Company set forth in the Prospectus, Attention: Secretary.
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12. Termination.
This Agreement may be terminated by you by notice to the Company (a) at any time prior to the
Closing Date or any Option Closing Date (if different from the Closing Date and then only as to
Option Shares) if any of the following has occurred: (i) since the date as of which information is
given in the Registration Statement, there has not been any change in the capital stock (other than
issuances pursuant to equity incentive plans) or increase in long-term debt of the Company or any
of the subsidiaries that is material to the Company and its subsidiaries taken as a whole, or any
material adverse change, or any development that would reasonably be expected to result in a
material adverse change, in or affecting the business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole, except as set forth or
contemplated in the Registration Statement, General Disclosure Package and the Prospectus, (ii) any
outbreak or escalation of hostilities or declaration of war or national emergency or other national
or international calamity or crisis (including, without limitation, an act of terrorism) or change
in economic or political conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the United States would, in your
judgment, materially impair the investment quality of the Shares, or (iii) suspension of trading in
securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market or limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on either such Exchange, (iv) the declaration of a banking moratorium by
United States or New York State authorities, (v) any downgrading, or placement on any watch list
for possible downgrading, in the rating of any of the Company’s debt securities by S&P or Xxxxx’x
or (vi) the suspension of trading of the Company’s common stock by the New York Stock Exchange, the
Commission, or any other governmental authority; or
(b) as provided in Sections 7 and 10 of this Agreement.
13. Successors.
This Agreement has been and is made solely for the benefit of the Underwriters and the Company
and their respective successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign merely because of such purchase.
14. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that the only information furnished or
to be furnished by any Underwriter to the Company for inclusion in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus consists of the
information set forth in the third, eleventh, twelfth, thirteenth, fourteenth, fifteenth and
sixteenth paragraphs under the caption “Underwriting” in the Prospectus.
24
15. Miscellaneous.
The reimbursement, indemnification and contribution agreements contained in this Agreement and
the representations, warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any investigation made by or on behalf of any Underwriter or controlling
person thereof, or by or on behalf of the Company or its directors or officers and (b) delivery of
and payment for the Shares under this Agreement.
The Company acknowledges and agrees that each Underwriter in providing investment banking
services to the Company in connection with the offering, including in acting pursuant to the terms
of this Agreement, has acted and is acting as an independent contractor and not as a fiduciary and
the Company does not intend such Underwriter to act in any capacity other than as an independent
contractor, including as a fiduciary or in any other position of higher trust.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the law of the State of
New York, including, without limitation, Section 5-1401 of the New York General Obligations Law.
The Underwriters, on the one hand, and the Company (on its own behalf and, to the extent
permitted by law, on behalf of its stockholders), on the other hand, waive any right to trial by
jury in any action, claim, suit or proceeding with respect to your engagement as underwriter or
your role in connection herewith.
If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among
the Company and the several Underwriters in accordance with its terms.
Very truly yours, THE GOODYEAR TIRE & RUBBER COMPANY |
||||
By | /s/ C. Xxxxxx Xxxxxx | |||
25
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. | ||||
DEUTSCHE BANK SECURITIES INC. | ||||
CITIGROUP GLOBAL MARKETS INC. | ||||
XXXXXXX, XXXXX & CO. | ||||
As Representatives of the several Underwriters listed on Schedule I | ||||
By: Deutsche Bank Securities Inc. | ||||
By |
/s/ Xxxxxx X. Xxxxx | |||
By: Citigroup Global Markets Inc. | ||||
By |
/s/ X. Xxxxxxxx | |||
Authorized Officer | ||||
By: Xxxxxxx, Sachs & Co. | ||||
By |
/s/ Xxxxxxx Xxxxx | |||
(Xxxxxxx, Sachs & Co.) |
26
SCHEDULE I
Schedule of Underwriters
Number of Firm Shares | ||||
Underwriter | to be Purchased | |||
Deutsche Bank Securities Inc. |
6,478,577 | |||
Citigroup Global Markets Inc. |
5,538,140 | |||
Xxxxxxx, Xxxxx & Co. |
5,538,140 | |||
Calyon Securities (USA) Inc. |
1,034,483 | |||
X.X. Xxxxxx Securities Inc. |
1,034,483 | |||
KBC Financial Products USA Inc. |
1,034,483 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
1,034,483 | |||
Natexis Bleichroeder Inc. |
1,034,483 | |||
Total |
22,727,272 | |||
SCHEDULE II
Number of Firm Shares sold: |
22,727,272 | |||
Price to public per Share: |
$ | 33.00 |
SCHEDULE III
None.
SCHEDULE IV
The following executive officers have entered into a Lock-Up Agreement:
Xxxxxx Xxxxxx (Chairman, CEO and President)
Xxxxxx Xxxxxx (President, Asia Pacific)
Xxxxxx xx Xxx (President, EU)
Xxxxxxx Xxxxxx (President, NAT)
Jarro Xxxxxx (President, EEAME)
Xxxxxxxxxxx Xxxxx (SVP, Global Sourcing)
Xxxxxx Xxxxx (EVP, Quality Systems and CTO)
Xxxxxx Xxxxxx (SVP, General Counsel and Secretary)
Xxxxxx Xxxxxx (President, Asia Pacific)
Xxxxxx xx Xxx (President, EU)
Xxxxxxx Xxxxxx (President, NAT)
Jarro Xxxxxx (President, EEAME)
Xxxxxxxxxxx Xxxxx (SVP, Global Sourcing)
Xxxxxx Xxxxx (EVP, Quality Systems and CTO)
Xxxxxx Xxxxxx (SVP, General Counsel and Secretary)
SCHEDULE V
Belt Concepts of America, Inc.
Celeron Corporation
Cosmoflex, Inc.
Dapper Tire Co., Inc.
Divested Companies Holding Company
Divested Litchfield Park Properties, Inc.
Goodyear Canada Inc.
Goodyear Engineered Products International Inc.
Goodyear Engineered Products Thailand Inc.
Goodyear Farms, Inc.
Goodyear International Corporation
Goodyear Western Hemisphere Corporation
The Kelly-Springfield Tire Corporation
Wheel Assemblies Inc.
Wingfoot Commercial Tire Systems, LLC
Wingfoot Ventures Eight Inc.
Celeron Corporation
Cosmoflex, Inc.
Dapper Tire Co., Inc.
Divested Companies Holding Company
Divested Litchfield Park Properties, Inc.
Goodyear Canada Inc.
Goodyear Engineered Products International Inc.
Goodyear Engineered Products Thailand Inc.
Goodyear Farms, Inc.
Goodyear International Corporation
Goodyear Western Hemisphere Corporation
The Kelly-Springfield Tire Corporation
Wheel Assemblies Inc.
Wingfoot Commercial Tire Systems, LLC
Wingfoot Ventures Eight Inc.
EXHIBIT A
LOCK-UP AGREEMENT
May 16, 2007
The Goodyear Tire & Rubber Company
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
Xxxxxxx, Xxxxx & Co.
Citigroup Global Markets Inc.
Xxxxxxx, Xxxxx & Co.
As Representatives of the
Several Underwriters
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that Deutsche Bank Securities Inc., Citigroup Global Markets Inc.
and Xxxxxxx, Sachs & Co., as representatives (the “Representatives”) of the several underwriters
(the “Underwriters”), propose to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with The Goodyear Tire & Rubber Company (the “Company”), providing for the public
offering by the Underwriters, including the Representatives, of common stock, no par value (the
“Common Stock”), of the Company (the “Public Offering”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned agrees that, without the prior
written consent of the Representatives, the undersigned will not, directly or indirectly, (1)
offer, sell, pledge, contract to sell (including any short sale), grant any option to purchase or
otherwise dispose of any shares of Common Stock (including, without limitation, shares of Common
Stock which may be deemed to be beneficially owned by the undersigned on the date hereof in
accordance with the rules and regulations of the Securities and Exchange Commission, shares of
Common Stock which may be issued upon exercise of a stock option or warrant and any other security
convertible into or exchangeable for Common Stock) or (2) enter into any Hedging Transaction (as
defined below)
relating to the Common Stock (each of the foregoing referred to as a “Disposition”) during
the period specified in the following paragraph (the “Lock-Up Period”). The foregoing restriction
is expressly intended to preclude the undersigned from engaging in any Hedging Transaction or other
transaction which is designed to or is reasonably expected to lead to or result in a Disposition
during the Lock-Up Period even if the securities would be disposed of by someone other than the
undersigned. “Hedging Transaction” means any short sale (whether or not against the box) or any
purchase, sale or grant of any right (including, without limitation, any put or call option) with
respect to any security (other than a broad-based market basket or index) that includes, relates to
or derives any significant part of its value from the Common Stock.
The initial Lock-Up Period will commence on the date hereof and continue until, and include,
the date that is 90 days after the date of the final prospectus relating to the Public Offering
(the “Initial Lock-Up Period”); provided, however, that if (1) during the last 17
days of the Initial Lock-Up Period, (A) the Company releases earnings results or (B) material news
or a material event relating to the Company occurs, or (2) prior to the expiration of the Initial
Lock-Up Period, the Company announces that it will release earnings results during the 16-day
period following the last day of the Initial Lock-Up Period, then in each case the Lock-Up Period
will be extended until the expiration of the 18-day period beginning on the date of the release of
the earnings results or the occurrence of material news or a material event relating to the
Company, as the case may be, unless the Representatives waive, in writing, such extension.
Notwithstanding the foregoing, the undersigned may (a) transfer shares of Common Stock
acquired pursuant to the Company’s employee stock purchase plans in existence on the date hereof,
including, without limitation, any such plan under 401(k) of the Internal Revenue Code, (b)
transfer shares of Common Stock to the Company for the purpose of exercising employee stock options
pursuant to the share swap exercise provisions set for therein, provided that the shares acquired
upon the exercise of such options shall be subject to the provisions of this Lock-Up Agreement, and
(c) transfer shares of Common Stock or other Company securities if the transfer is by gift, will or
intestacy; provided that the transferee executes an agreement stating that the transferee is
receiving and holding the securities subject to the provisions of this Lock-Up Agreement.
The undersigned agrees that the Company may, with respect to any shares of Common Stock or
other Company securities for which the undersigned is the beneficial or record holder, cause the
transfer agent for the Company to note stop transfer instructions with respect to such securities
on the transfer books and records of the Company.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Agreement. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned and any obligations of the
undersigned shall be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
2
Notwithstanding anything herein to the contrary, if the closing of the Public Offering has not
occurred prior to June 4, 2007 or the Underwriting Agreement shall have been terminated pursuant to
Section 12 thereof, this agreement shall be of no further force or effect.
Signature: | ||||
Print Name: | ||||
3