M/I HOMES, INC. 4,350,000Common Shares Underwriting Agreement
Exhibit
1.1
M/I
HOMES, INC.
4,350,000Common
Shares
Underwriting
Agreement
May
19, 2009
Citigroup
Global Markets Inc.
X.X.
Xxxxxx Securities Inc.
As
Representatives of the
several Underwriters
listed
in Schedule 1 hereto
c/o
Citigroup Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
M/I
Homes, Inc., an Ohio corporation (the “Company”), proposes to issue and sell to
the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for
whom you are acting as representatives (the “Representatives”), an aggregate of
4,350,000 common shares, par value $0.01 per share, of the Company (the
“Underwritten Shares”) and, at the option of the Underwriters, up to an
additional 650,000 common shares of the Company (the “Option
Shares”). The Underwritten Shares and the Option Shares are herein
referred to as the “Shares”. The common shares of the Company to be
outstanding after giving effect to the sale of the Shares are referred to herein
as the “Stock”.
The
Company hereby confirms its agreement with the several Underwriters concerning
the purchase and sale of the Shares, as follows:
1. Registration
Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement (File No. 333-
152751), including a prospectus, relating to the Shares. Such
registration statement, as amended at the time it became effective, including
the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus”
means each prospectus included in such registration statement (and any
amendments thereto) before effectiveness, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that
omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to
Rule 173 under the Securities Act) in connection with confirmation of sales of
the Shares. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration
Statement. Any reference in this Agreement to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to “amend”, “amendment” or
“supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Exchange Act”) that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the
Prospectus.
At
or prior to the Applicable Time (as defined below), the Company had prepared the
following information (collectively with the pricing information set forth on
Annex B, the “Pricing Disclosure Package”): a Preliminary Prospectus
dated May 18, 2009 and each “free-writing prospectus” (as defined pursuant to
Rule 405 under the Securities Act) listed on Annex B hereto.
“Applicable
Time” means 5:00 p.m., New York City time, on May 19, 2009.
2. Purchase of the Shares by
the Underwriters.
(a) The
Company agrees to issue and sell the Underwritten Shares to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company the respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the
“Purchase Price”) of $11.8125.
In
addition, the Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, shall have the option to purchase, severally
and not jointly, from the Company the Option Shares at the Purchase Price less
an amount per share equal to any dividends or distributions declared by the
Company and payable on the Underwritten Shares but not payable on the Option
Shares.
If
any Option Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares which bears
the same ratio to the aggregate number of Option Shares being purchased as the
number of Underwritten Shares set forth opposite the name of such Underwriter in
Schedule 1 hereto (or such number increased as set forth in Section 10 hereof)
bears to the aggregate number of Underwritten Shares being purchased from the
Company by the several Underwriters, subject, however, to such adjustments to
eliminate any fractional Shares as the Representatives in their sole discretion
shall make.
The
Underwriters may exercise the option to purchase Option Shares at any time in
whole, or from time to time in part, on or before the thirtieth day following
the date of the Prospectus, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option
Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for, which may be the same date and
time as the Closing Date (as hereinafter defined) but shall not be earlier than
the Closing Date or later than the tenth full business day (as hereinafter
defined) after the date of such notice (unless such time and date are postponed
in accordance with the provisions of Section 10 hereof). Any such
notice shall be given at least two business days prior to the date and time of
delivery specified therein.
(b) The
Company understands that the Underwriters intend to make a public offering of
the Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the Shares on the
terms set forth in the Prospectus. The Company acknowledges and
agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representatives in the case of the
Underwritten Shares, at the offices of Xxxxxx Xxxxxx & Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000 at 10:00 A.M., New York City time, on May 26, 2009, or at such
other time or place on the same or such other date, not later than the fifth
business day thereafter, as the Representatives and the Company may agree upon
in writing or, in the case of the Option Shares, on the date and at the time and
place specified by the Representatives in the written notice of the
Underwriters’ election to purchase such Option Shares. The time and
date of such payment for the Underwritten Shares is referred to herein as the
“Closing Date”, and the time and date for such payment for the Option Shares, if
other than the Closing Date, is herein referred to as the “Additional Closing
Date”.
Payment
for the Shares to be purchased on the Closing Date or the Additional Closing
Date, as the case may be, shall be made against delivery to the Representatives
for the respective accounts of the several Underwriters of the Shares to be
purchased on such date in definitive form registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full business days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of
such Shares duly paid by the Company. Delivery of the Shares shall be
made through the facilities of The Depository Trust Company (“DTC”) unless the
Representatives shall otherwise instruct. The certificates for the
Shares will be made available for inspection and packaging by the
Representatives at the office of DTC or its designated custodian not later than
1:00 P.M., New York City time, on the business day prior to the Closing Date or
the Additional Closing Date, as the case may be.
(d) The
Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect
to the offering of Shares contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other
person. Additionally, neither the Representatives nor any other
Underwriter is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company with
respect thereto. Any review by the Underwriters of the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
3. Representations and
Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus included in the Pricing Disclosure Package, at the time of filing
thereof, complied in all material respects with the Securities Act, and no
Preliminary Prospectus, at the time of filing thereof, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in any Preliminary Prospectus, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 7(b)
hereof.
(b) Pricing Disclosure
Package. The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date and as of the Additional Closing Date,
as the case may be, will not, contain any untrue statement of a material fact or
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 that
the Company makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in Section 7(b)
hereof.
(c) Issuer Free Writing
Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, used, authorized, approved or referred to and will not prepare, use,
authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Shares (each such communication by the Company or its
agents and representatives (other than a communication referred to in clause (i)
below) an “Issuer Free Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed on Annex B
hereto, each electronic road show and any other written communications approved
in writing in advance by the Representatives. Each such Issuer Free
Writing Prospectus complied in all material respects with the Securities Act,
has been or will be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby) and, when
taken together with the Preliminary Prospectus filed prior to the first use of,
such Issuer Free Writing Prospectus, did not, and as of the Closing Date and as
of the Additional Closing Date, as the case may be, will not, contain any untrue
statement of a material fact or 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 that the
Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or Preliminary
Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in such Issuer Free Writing Prospectus or
Preliminary Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 7(b) hereof.
(d) Registration Statement and
Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission, and no proceeding
for that purpose or pursuant to Section 8A of the Securities Act against the
Company or related to the offering of the Shares has been initiated or
threatened by the Commission; as of the applicable effective date of the
Registration Statement and any post-effective amendment thereto, the
Registration Statement and any such post-effective amendment complied and will
comply in all material respects with the Securities Act, and did not and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the date of the Prospectus and any amendment
or supplement thereto and as of the Closing Date and as of the Additional
Closing Date, as the case may be, the Prospectus will not contain any untrue
statement of a material fact or 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 that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in Section 7(b) hereof.
(e) Incorporated
Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when
they were filed with the Commission conformed in all material respects to the
requirements of the Exchange Act, and, when filed with the Commission, none of
such documents contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Registration Statement,
the Prospectus or the Pricing Disclosure Package, when such documents are filed
with the Commission, will conform in all material respects to the requirements
of the Exchange Act and will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(f) Financial
Statements. The consolidated historical financial statements
(including the related notes and supporting schedules) of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus
present fairly in all material respects the consolidated financial condition,
results of operations and cash flows of the Company and its consolidated
subsidiaries, as of the dates and for the periods indicated, comply as to form
with the applicable accounting requirement of Regulation S-X and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as otherwise noted
therein); and the other financial and statistical information and data included
or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus are, in all material respects, accurately
presented and prepared on a basis consistent with such consolidated historical
financial statements and the books and records of the Company and its
consolidated subsidiaries. None of the Company or the Subsidiaries
(as defined below) has any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations or any “variable
interest entities” within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Preliminary Prospectus and the
Prospectus.
(g) No Material Adverse
Change. None of the Company nor any of the Subsidiaries has
sustained, since December 31, 2008, any loss or interference with the business
of 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, otherwise than as set
forth or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, resulting in a Material Adverse Effect;
and, since such date, there has not been any material change in the capital
stock or long-term debt of the Company or any material adverse change, or any
development which could be reasonably likely to result in a material adverse
change, in or affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company and the
Subsidiaries taken as a whole, otherwise than as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. Since
December 31, 2008 and through the date hereof, and except as may otherwise be
disclosed or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (A) the Company has not
(i) entered into any material transaction not in the ordinary course of
business or (ii) incurred any material liability other than in the ordinary
course of business, and (B) the Company has not declared or paid any dividend on
its capital stock.
(h) Organization and Good
Standing. Each of the Company and its Subsidiaries has been
duly organized and is validly existing and in good standing under the laws of
its respective jurisdiction of organization, is duly qualified to do business
and is in good standing in each jurisdiction in which its respective ownership
or lease of property or the conduct of its respective businesses requires such
qualification, except where the failure to so qualify could not reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business (a “Material Adverse Effect”), and have all
requisite corporate, limited liability company or other power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged.
(i) Capitalization. The
Company has an authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable and are not subject to any pre-emptive or similar rights; except
as described or incorporated by reference in or expressly contemplated by the
Pricing Disclosure Package and the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of its
Subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of the
Company or any such Subsidiary, any such convertible or exchangeable securities
or any such rights, warrants or options; the capital stock of the Company
conforms in all material respects to the description thereof contained or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(j) Stock
Options. With respect to the stock options (the “Stock
Options”) granted pursuant to the stock-based compensation plans of the Company
and its Subsidiaries (the “Company Stock Plans”), (i) each Stock Option intended
to qualify as an “incentive stock option” under Section 422 of the Code so
qualifies, (ii) each grant of a Stock Option was duly authorized no later than
the date on which the grant of such Stock Option was by its terms to be
effective (the “Grant Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a duly
constituted and authorized committee thereof) and any required shareholder
approval by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and delivered by each
party thereto, (iii) each such grant was made in accordance with the terms of
the Company Stock Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the rules of the New York Stock
Exchange and any other exchange on which Company securities are traded,
excluding any grant not so made that has not had and would not reasonably be
expected to have a Material Adverse Effect, and (iv) each such grant was
properly accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the Company's
filings with the Commission in accordance with the Exchange Act and all other
applicable laws, excluding any grant not so accounted for or disclosed that has
not had and would not reasonably be expected to have a Material Adverse Effect.
The Company has not knowingly granted, and there is no and has been no policy or
practice of the Company of granting, Stock Options prior to, or otherwise
coordinating the grant of Stock Options with, the release or other public
announcement of material information regarding the Company or its Subsidiaries
or their results of operations or prospects.
(k) Due
Authorization. The Company has requisite right, power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder; and all action required to be taken for the due and proper
authorization, execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby has been duly and
validly taken.
(l) Authorization of the Underwriting
Agreement and the Shares. This Agreement has been duly authorized,
executed and delivered by the Company and the Shares have been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement, and, when
issued and delivered to and paid for by the Underwriters, will be duly
authorized, validly issued, fully paid and non-assessable and will have been
offered and sold in compliance, in all material respects, with all applicable
laws (including, without limitation, federal or state securities
laws). The description of the Shares, and the statements related
thereto, contained in the Registration Statement, the Pricing Disclosure Package
or the Prospectus are, and at the Closing Date, will be, complete and accurate
in all material respects. Upon payment of the purchase price therefor
and delivery of certificates representing the Shares in accordance herewith,
each of the Underwriters will receive good and valid title to the Shares, free
and clear of all security interests, mortgages, pledges, liens, encumbrances,
claims and equities. No common shares of the Company are reserved for
any purpose other than securities to be issued pursuant to this Agreement and
except as disclosed or incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(m) The Shares. All
the issued and outstanding equity securities of each Subsidiary of the Company
have been duly authorized and validly issued and, as to shares of capital stock
of any Subsidiary that is a corporation, are fully paid and non-assessable and
(except for directors’ qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims other
than restrictions on transfer imposed by applicable securities
laws. The Company does not own or control, directly or indirectly,
any subsidiaries other than those entities listed on Schedule 2 (each, a
“Subsidiary” and collectively, the “Subsidiaries”); and, other than the
Subsidiaries, the Company does not own, directly or indirectly, any shares of
stock or any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture, limited
liability company, association or other entity other than those listed on
Schedule 3 (collectively, the “Joint Ventures”).
(n) No Violation or
Default. Neither the Company nor any of its Subsidiaries
(i) is in violation of its organizational documents, (ii) is in
default and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject,
which default could reasonably be expected to have a Material Adverse Effect,
(iii) is in violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject or has
failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business which violation or failure could reasonably be
expected to have a Material Adverse Effect or (iv) has received any notice of
proceedings relating to the revocation or modification of any such license,
permit, certificate, franchise or other governmental authorization or permit
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could reasonably be expected to have a Material
Adverse Effect, except as set forth in, incorporated by reference in or
contemplated in the Registration Statement, the Pricing Disclosure Package and
the Prospectus (exclusive of any amendment or supplement thereto).
(o) No Conflicts. None
of the execution and delivery of this Agreement, the issuance and sale of the
Shares or the consummation of any other of the transactions hereby contemplated,
or the fulfillment of the terms hereof will (i) materially conflict with, result
in a material breach or violation of any of the terms or provisions of,
constitute a material default under or the imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which the Company is a party or by which the Company 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
organizational documents of the Company or (iii) result in a material violation
of any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its properties or
assets.
(p) No Consents
Required. No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in connection with
the transactions contemplated hereby, except such as may be required under the
blue sky laws of any jurisdiction and except for the registration of
the Shares under the Securities Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required by
the Financial Industry Regulatory Authority, Inc. (“FINRA”), in each case, in
connection with the purchase and distribution of the Shares by the Underwriters
in the manner contemplated herein and in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, excluding any consent, approval,
authorization, filing or order the failure of which to obtain or make would not
reasonably be expected to have a Material Adverse Effect.
(q) Legal
Proceedings. Except as described or incorporated by reference
in the Registration Statement, the Pricing 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 of which any property or assets
of the Company or any of its Subsidiaries is the subject that, individually or
in the aggregate, (i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement, or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to have a
Material Adverse Effect; and to the Company’s knowledge, no such proceedings are
threatened by governmental authorities or by others.
(r) Independent
Accountants. Deloitte & Touche LLP, who have reported on
the audited financial statements of the Company and its consolidated
Subsidiaries and whose report with respect to such audited consolidated
financial statements is included or incorporated by reference in the Preliminary
Prospectus, Prospectus and the Registration Statement, are independent public
accountants with respect to the Company within the meaning of the Act and the
rules and regulations promulgated thereunder and Rule 3600T of the Public
Company Accounting Oversight Board.
(s) Title to Real and Personal
Property. The Company and its Subsidiaries own the items of
real property and personal property purported to be owned by them which are
material to the conduct of the business of the Company and its Subsidiaries
taken as a whole, free and clear of all liens, encumbrances and defects, except
such as are described or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus or could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. All real property held under lease by the Company and
the Subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as are described or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the Prospectus or
such as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(t) Title to Intellectual
Property. The Company and each of its Subsidiaries owns or
possesses adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of their
respective businesses the absence of which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect and have no
reason to believe that the conduct of their respective businesses will conflict
with, and have not received any notice of any claim of conflict with, any such
rights of others.
(u) Investment Company
Act. The Company is not after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as described
in the Disclosure Package and the Final Prospectus, an “investment company”
within the meaning of such term under the United States Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
(v) Taxes. Except in
any case in which the failure to file, payment of tax (or other assessment, fine
or penalty) or determination of a tax deficiency, as applicable, would not have
a Material Adverse Effect and except as set forth in or incorporated by
reference in the Pricing Disclosure Package and the Prospectus (exclusive of any
amendment or supplement thereto after the date hereof): (i) the Company has
filed all federal, state and local income and franchise tax returns required to
be filed (or has requested extensions thereof) through the date hereof; (ii) the
Company has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent any of the foregoing is due and
payable; and (iii) no tax deficiency has been determined adversely to the
Company or any of the Subsidiaries (nor does the Company have any knowledge of
any such tax deficiency). There are no material stamp or other
issuance or transfer taxes or duties or other similar fees or charges required
to be paid in connection with the execution and delivery of this Agreement or
the issuance or sale by the Company of the Shares.
(w) Certain Statements in the
Preliminary Prospectus. The statements in the Preliminary
Prospectus under the headings “Material United States federal income tax
consequences to non-United States holders of our common shares” and “Description
of capital stock” and under Part II, Item 1 “Legal Proceedings” in the Company’s
quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2009
incorporated by reference in the Preliminary Prospectus fairly summarize in all
material respects the matters therein described.
(x) Licenses and
Permits. The Company and its Subsidiaries possess all material
licenses, certificates, permits and other authorizations issued by the
appropriate U.S. federal, state or non U.S. regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any of its
Subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such license, certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, except as set forth in,
incorporated by reference in or contemplated in the Registration Statement, the
Pricing Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(y) No Labor
Disputes. No labor disturbances by the employees of the
Company exist or, to the knowledge of the Company, are imminent which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(z) Hazardous
Materials. Except as are described or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, all real property owned (either presently or at any time in the
past), or presently leased by the Company and its Subsidiaries in connection
with the operation of its business, including, without limitation, any
subsurface soils and ground water (collectively, the “Realty”), is free of
contamination from any Hazardous Material (as defined below) which could
reasonably be expected to materially impair the beneficial use thereof by the
Company and its Subsidiaries, constitute or cause a significant health, safety
or other environmental hazard to occupants or users or result in a violation of
or liability under any Environmental Law (as defined below), except Hazardous
Materials which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect; and the Realty does not contain any
underground storage or treatment tanks, active or abandoned water, gas or oil
xxxxx, or any other underground improvements or structures, other than the
foundations, footings or other supports for the improvements located thereon,
the presence of which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Notwithstanding the
foregoing, Hazardous Materials shall be deemed not to include any supplies or
substances maintained, used, stored or held on the Realty which are
(i) naturally occurring, (ii) installed by public utilities or
(iii) used in the ordinary course of the Company’s or its Subsidiaries’
business, provided that such supplies or substances are stored, used, maintained
and held in all material respects in accordance with any applicable
Environmental Laws and with restrictions, conditions and standards suggested by
the manufacturer and the Company’s insurance carriers.
The
term “Hazardous Materials” means any pollutant, contaminant, waste, chemical,
material, substance or constituent, including without limitation, any
radioactive substance, methane, asbestos, polychlorinated biphynls, which are
subject to regulation or can give rise to liability under any Environmental
Law.
(aa) Compliance with Environmental
Laws. Except as are described or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the Prospectus,
and except, as individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, (i) the Company and each of its
Subsidiaries is in compliance with, and not subject to liability under, any
applicable Environmental Law; (ii) there is no action, suit, demand, claim,
written notice of violation, notice or demand letter or written request for
information pending or, to the knowledge of the Company and each of its
Subsidiaries threatened, against any of them under or pursuant to any
Environmental Law; and (iii) neither the Company nor any of its Subsidiaries is
conducting or financing any investigation, response or other corrective action
pursuant to any Environmental Law at any site or facility, nor is any of them
subject or party to any order, judgment, decree, contract or agreement which
obligates it to conduct or finance any such action, nor has any of them assumed
by contract or agreement any obligation or liability under any Environmental
Law.
(bb) Liability under Environmental
Laws. In the ordinary course of its business, the Company
periodically reviews the effect of any and all applicable non-U.S., U.S.
federal, state and local laws and regulations relating to the protection of
human health and safety, pollution or protection of the environment, including,
without limitation, those relating to the use, generation, storage, treatment,
disposal, transport, release or threat of release of Hazardous Materials
(“Environmental Laws”) on the business, operations and properties of the Company
and the Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties); and on the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
except as set forth or incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(cc) Compliance with
ERISA. The minimum funding standard under Section 302 of the
Employee Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder (“ERISA”), has
been satisfied by each “pension plan” (as defined in Section 3(2) of ERISA)
which has been established or maintained by the Company and/or one or more of
its Subsidiaries, and the trust forming part of each such plan which is intended
to be qualified under Section 401 of the Code is so qualified; each of the
Company and its Subsidiaries has fulfilled its obligations, if any, under
Section 515 of ERISA; neither the Company nor any of its Subsidiaries maintains
or is required to contribute to a “welfare plan” (as defined in Section 3(1) of
ERISA) which provides retiree or other post-employment welfare benefits or
insurance coverage (other than “continuation coverage” (as defined in Section
602 of ERISA)); each pension plan and welfare plan established or maintained by
the Company and/or one or more of its Subsidiaries is in compliance in all
material respects with the currently applicable provisions of ERISA; and neither
the Company nor any of its Subsidiaries has incurred or could reasonably be
expected to incur any withdrawal liability under Section 4201 of ERISA, any
liability under Section 4062, 4063, or 4064 of ERISA, or any other liability
under Title IV of ERISA.
(dd) Disclosure
Controls. The Company maintains a system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that
complies with the requirements of the Exchange Act. The Company has
carried out evaluations of the effectiveness of its disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act.
(ee) Accounting
Controls. The Company and its Subsidiaries maintain a system
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 generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as disclosed or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there are no material weaknesses in the Company’s internal
controls.
(ff) Insurance. The
Company and its Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as in the aggregate is prudent and customary for the
business in which each is engaged; and neither the Company nor any of its
Subsidiaries has received 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.
(gg) No Unlawful
Payments. None of the Company, its Subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its Subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such Persons of
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the Company, its Subsidiaries and, to
the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(hh) Compliance with Money Laundering
Laws. The operations of the Company and its Subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
Subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(ii) Compliance with
OFAC. None of the Company, any of the Subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of the Subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the
Shares hereunder, or lend, contribute or otherwise make available such proceeds
to any Subsidiary, Joint Venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(jj) Compliance with Exchange
Act. The Company is subject to and in full compliance in all
material respects with the reporting requirements of Section 13 or Section 15(d)
of the Exchange Act.
(kk) No Restrictions on Significant
Subsidiaries. No Significant Subsidiary of the Company is
currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on such Significant Subsidiary’s
capital stock, from repaying to the Company any loans or advances to such
Significant Subsidiary from the Company or from transferring any of such
Significant Subsidiary’s properties or assets to the Company or any other
Significant Subsidiary of the Company, except as set forth, incorporated by
reference or contemplated in the Registration Statement, the Pricing Disclosure
Package or the Prospectus. The Subsidiaries listed on Annex D
attached hereto are the only significant Subsidiaries of the Company (each, a
“Significant Subsidiary” and collectively, the “Significant
Subsidiaries”).
(ll) No Broker’s
Fees. The Company has not paid or agreed to pay to any person
any compensation for soliciting another to purchase the Shares (except as
contemplated by this Agreement).
(mm) No Registration
Rights. Except as set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
(nn) No
Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that has constituted or that might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares; provided, that the Company makes no
representation or warranty with respect to any action taken by any
Underwriter.
(oo) Margin Rules. The
application of the proceeds received by the Company from the issuance, sale and
delivery of the Shares as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus will not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System or any other regulation of
such Board of Governors.
(pp) Statistical and Market
Data. Nothing has come to the attention of the Company that
has caused the Company to believe that the statistical and market-related data
included in the Registration Statement, the Pricing Disclosure Package and the
Prospectus is not based on or derived from sources that are reliable and
accurate in all material respects.
(qq) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the
Company and any of the Company’s directors or officers, in their capacities as
such, to comply in any material respect with any provision of the Sarbanes Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Sarbanes Oxley
Act”), including Section 402 related to loans and Sections 302 and 906
related to certifications.
(rr) Status under the Securities
Act. At the time of filing the Registration Statement and any
post-effective amendment thereto, at the earliest time thereafter that the
Company or any offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Securities Act) of the Shares and at the
date hereof, the Company was not and is not an “ineligible issuer,” as defined
in Rule 405 under the Securities Act.
4. Further Agreements of the
Company. The Company covenants and agrees with each
Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B
or 430C under the Securities Act, will file any Issuer Free Writing Prospectus
to the extent required by Rule 433 under the Securities Act; will file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Shares; and will furnish copies of the Prospectus and each Issuer
Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as
the Representatives may reasonably request.
(b) Delivery of
Copies. The Company will deliver, without charge, (i) to the
Representatives, three signed copies of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and
consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of
the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period (as defined
below), as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein and each
Issuer Free Writing Prospectus) as the Representatives may reasonably
request. As used herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of the Shares as
in the opinion of counsel for the Underwriters a prospectus relating to the
Shares is required by law to be delivered (or required to be delivered but for
Rule 172 under the Securities Act) in connection with sales of the Shares by any
Underwriter or dealer.
(c) Amendments or Supplements, Issuer
Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time that the
Registration Statement becomes effective, the Company will furnish to the
Representatives and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not
prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the
Representatives reasonably object.
(d) Notice to the
Representatives. The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when the Registration
Statement has become effective; (ii) when any amendment to the Registration
Statement has been filed or becomes effective; (iii) when any supplement to the
Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed; (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the
Registration Statement or any other request by the Commission for any additional
information; (v) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use
of any Preliminary Prospectus, any of the Pricing Disclosure Package or the
Prospectus or the initiation or, to the knowledge of the Company, threatening of
any proceeding for that purpose or pursuant to Section 8A of the Securities Act;
(vi) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Pricing Disclosure Package or any Issuer
Free Writing Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing when
the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; and (vii) of the receipt
by the Company of any notice with respect to any suspension of the qualification
of the Shares for offer and sale in any jurisdiction or the initiation or, to
the knowledge of the Company, threatening of any proceeding for such purpose;
and the Company will use its commercially reasonable best efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus, any
of the Pricing Disclosure Package or the Prospectus or suspending any such
qualification of the Shares and, if any such order is issued, will obtain as
soon as possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its
commercially reasonable best efforts to have such amendment or new registration
statement declared effective as soon as practicable.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period (i)
any event shall occur or condition shall exist as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to paragraph (c) above, file with the Commission and furnish to the Underwriters
and to such dealers as the Representatives may designate such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law and (2) if at any time
prior to the Closing Date (i) any event shall occur or condition shall exist as
a result of which the Pricing Disclosure Package as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances existing when the Pricing Disclosure Package is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the
Pricing Disclosure Package to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representatives may designate such
amendments or supplements to the Pricing Disclosure Package as may be necessary
so that the statements in the Pricing Disclosure Package as so amended or
supplemented will not, in the light of the circumstances existing when the
Pricing Disclosure Package is delivered to a purchaser, be misleading or so that
the Pricing Disclosure Package will comply with law.
(f) Blue Sky
Compliance. The Company will qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and will continue such qualifications
in effect so long as required for distribution of the Shares; provided that the
Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earning
Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the “effective date” (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For
a period of 60 days after the date of the Prospectus, the Company will not (i)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Stock or any securities convertible into
or exercisable or exchangeable for Stock or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Stock or such other securities, in
cash or otherwise, without the prior written consent of Citigroup Global Markets
Inc. and X.X. Xxxxxx Securities Inc., other than the Shares to be sold hereunder
and any shares of Stock of the Company issued upon the exercise of options
granted under Company Stock Plans or pursuant to other awards granted under any
of the Company’s equity incentive or employee benefit plans in effect on the
date of this Agreement. Notwithstanding the foregoing, if (1) during the last 17
days of the 60-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 60-day restricted period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day
of the 60-day period, the restrictions imposed by this Agreement shall continue
to apply until the expiration of the 18-day period beginning on the issuance of
the earnings release or the occurrence of the material news or material
event.
(i) Use of
Proceeds. The Company will apply the net proceeds from the
sale of the Shares as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus under the heading “Use of
proceeds”.
(j) No
Stabilization. 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
Stock.
(k) Exchange
Listing. The Company will use its commercially reasonable best
efforts to list, subject to notice of issuance, the Shares on the New York Stock
Exchange (the “Exchange”).
(l) Reports. So long
as the Shares are outstanding, the Company will furnish to the Representatives,
as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange or automatic quotation system; provided the Company
will be deemed to have furnished such reports and financial statements to the
Representatives to the extent they are filed on the Commission’s Electronic Data
Gathering, Analysis, and Retrieval system.
(m) Record
Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
5. Certain Agreements of the
Underwriters. Each
Underwriter hereby represents and agrees that:
(a) It
has not used, authorized use of, referred to or participated in the planning for
use of, 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 Securities 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 contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including
through incorporation by reference) in the Preliminary Prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing
Prospectus listed on Annex B or prepared pursuant to Section 3(c) or Section
4(c) 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 (each such free writing prospectus referred to in clauses (i) or
(iii), an “Underwriter Free Writing Prospectus”).
(b) It
has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Shares unless such
terms have previously been included in a free writing prospectus filed with the
Commission; provided
that Underwriters may use a term sheet substantially in the form of Annex C
hereto without the consent of the Company; provided further that any
Underwriter using such term sheet shall notify the Company, and provide a copy
of such term sheet to the Company, prior to, or substantially concurrently with,
the first use of such term sheet.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such
proceeding against it is initiated during the Prospectus Delivery
Period).
6. Conditions of Underwriters’
Obligations. The obligation of each Underwriter to purchase
the Underwritten Shares on the Closing Date or the Option Shares on the
Additional Closing Date, as the case may be, as provided herein is subject to
the performance by the Company of its covenants and other obligations hereunder
and to the following additional conditions:
(a) Registration Compliance; No Stop
Order. No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose or
pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer Free Writing
Prospectus shall have been timely filed with the Commission under the Securities
Act (in the case of an Issuer Free Writing Prospectus, to the extent required by
Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof;
and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the
Representatives.
(b) Representations and
Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of
the Closing Date or the Additional Closing Date, as the case may be; and the
statements of the Company and its officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing
Date or the Additional Closing Date, as the case may be.
(c) No
Downgrade. Subsequent to the earlier of (A) the Applicable
Time and (B) the execution and delivery of this Agreement, if there are any debt
securities or preferred stock of, the Company or any of its Subsidiaries that
are rated by a “nationally recognized statistical rating organization,” as such
term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, (i) no downgrading shall have occurred in the rating accorded
any such debt securities or preferred stock and (ii) no such organization shall
have publicly announced that it has under surveillance or review, or has changed
its outlook to negative with respect to, its rating of any such debt securities
or preferred stock (other than an announcement with positive implications of a
possible upgrading).
(d) No Material Adverse
Change. Subsequent to the Applicable Time or, if earlier, the
dates as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 6
or (ii) any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries taken as a whole,
except as set forth, incorporated by reference or contemplated in the
Registration Statement, the Pricing Disclosure Package and the Prospectus
(exclusive of any amendment or supplement thereto) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of
the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Shares as
contemplated by the Registration Statement (exclusive of any amendment thereof),
the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(e) Officer’s
Certificate. The Representatives shall have received on and as
of the Closing Date or the Additional Closing Date, as the case may be, a
certificate of the chief financial officer or chief accounting officer of the
Company and one additional senior executive officer of the Company who is
reasonably satisfactory to the Representatives (i) confirming that such officers
have carefully examined the Registration Statement, the Pricing Disclosure
Package and the Prospectus and, to the knowledge of such officers, the
representations set forth in Sections 3(b) and 3(d) hereof are true and correct,
(ii) confirming that the other representations and warranties of the Company in
this Agreement are true and correct, and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date or the Additional Closing Date, as the
case may be, (iii) confirming that since the date of the most recent financial
statements included in the Pricing Disclosure Package and the Prospectus
(exclusive of any supplement thereto), there has been no material adverse
change, or any development involving a prospective change, in the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, except as set forth in or
contemplated in the Pricing Disclosure Package and the Prospectus (exclusive of
any supplement thereto) and (iv) to the effect set forth in paragraphs (a), (c)
and (d) above.
(f) Comfort
Letters. On the date of this Agreement and on the Closing Date
or the Additional Closing Date, as the case may be, Deloitte & Touche, LLP
shall have furnished to the Representatives, at the request of the Company,
letters, dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus; provided, that the letter delivered on the Closing Date or the
Additional Closing Date, as the case may be, shall use a “cut-off” date no more
than three business days prior to such Closing Date or such Additional Closing
Date, as the case may be.
(g) Opinion and 10b-5 Statement of
Counsel for the Company. Each of (i) Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP,
counsel for the Company, and (ii) J. Xxxxxx Xxxxx, General Counsel for the
Company, shall have furnished to the Representatives, at the request of the
Company, their written opinion and 10b-5 statement (in the case of Vorys, Xxxxx,
Xxxxxxx and Xxxxx LLP), dated the Closing Date or the Additional Closing Date,
as the case may be and addressed to the Underwriters, substantially to the
effect as set forth in Annex A-1 and A-2 hereto, respectively.
(h) Opinion and 10b-5 Statement of
Counsel for the Underwriters. The Representatives shall have
received on and as of the Closing Date or the Additional Closing Date, as the
case may be, an opinion and 10b-5 statement of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the
Underwriters, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such documents and information as
they may reasonably request to enable them to pass upon such
matters.
(i) No Legal Impediment to
Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would, as of
the Closing Date or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Shares; and no injunction or order of any federal, state
or foreign court shall have been issued that would, as of the Closing Date or
the Additional Closing Date, as the case may be, prevent the issuance or sale of
the Shares.
(j) Good Standing. The
Representatives shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, satisfactory evidence of the good
standing of the Company and its Subsidiaries in their respective jurisdictions
of organization and their good standing as foreign entities in such other
jurisdictions as the Representatives may reasonably request, in each case in
writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(k) Exchange
Listing. The Shares to be delivered on the Closing Date or
Additional Closing Date, as the case may be, shall have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance.
(l) Lock-up
Agreements. The Representatives shall have received the
“lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and each of the executive officers and directors of the
Company.
(m) Additional
Documents. On or prior to the Closing Date or the Additional
Closing Date, as the case may be, the Company shall have furnished to the
Representatives such further certificates and documents as the Representatives
may reasonably request.
All
opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
7. Indemnification and
Contribution.
(a) Indemnification of the
Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses reasonably incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing
Disclosure Package that has subsequently been amended), or caused by any
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly 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
subsection (b) below.
(b) Indemnification of the
Company. Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto),
any Issuer Free Writing Prospectus or any Pricing Disclosure Package, it being
understood and agreed upon that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures
appearing in the fourth paragraph under the caption “Underwriting” and the
information contained in the seventh and eighth paragraphs under the caption
“Underwriting.
(c) Notice and
Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnification may
be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under paragraph (a) or (b) above except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under
paragraph (a) or (b) above. If any such proceeding shall be brought
or asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the
consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interest between
them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be paid or reimbursed as they are incurred. Any
such separate firm for any Underwriter, its affiliates, directors and officers
and any control persons of such Underwriter shall be designated in writing by
the Representatives and any such separate firm for the Company, its directors,
its officers who signed the Registration Statement and any control persons of
the Company shall be designated in writing by the Company. The
Indemnifying Person 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 Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an
Indemnifying Person reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by this paragraph, the Indemnifying Person shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement. No Indemnifying Person shall, without
the written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnification could have been sought hereunder
by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (y) does not include any statement as
to or any admission of fault, culpability or a failure to act by or on behalf of
any Indemnified Person.
(d) Contribution. If
the indemnification provided for in paragraphs (a) and (b) above is unavailable
to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) 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 or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) 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 that resulted in such losses, claims, damages or
liabilities, 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
respective proportions as the gross proceeds (before deducting expenses) of the
offering received by the Company from the sale of the Shares and the total
underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate offering price of the Shares. The
relative fault of the Company, on the one hand, and the Underwriters on the
other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) Limitation on
Liability. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 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 that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Shares exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Section 7 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Person at law or in equity.
8. Effectiveness of
Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This
Agreement may be terminated in the absolute discretion of the Representatives,
by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date or, in the case of the Option Shares, prior to the
Additional Closing Date (i) trading generally shall have been suspended or
materially limited on or by any of the New York Stock Exchange, the American
Stock Exchange or the Nasdaq Stock Market; (ii) trading of any securities issued
or guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside
the United States, that in the sole judgment of the Representatives, is material
and adverse and makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Shares on the Closing Date or the Additional
Closing Date, as the case may be, on the terms and in the manner contemplated by
this Agreement, the Pricing Disclosure Package and the Prospectus.
10. Defaulting
Underwriter.
(a) If,
on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed
to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory
to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the Company
shall be entitled to a further period of 36 hours within which to procure other
persons satisfactory to the non-defaulting Underwriters to purchase such Shares
on such terms. If other persons become obligated or agree to purchase
the Shares of a defaulting Underwriter, either the non-defaulting Underwriters
or the Company may postpone the Closing Date or the Additional Closing Date, as
the case may be, for up to five full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement,
the term “Underwriter” includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 10, purchases Shares that a defaulting Underwriter
agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate number of Shares
that remain unpurchased on the Closing Date or the Additional Closing Date, as
the case may be, does not exceed one-tenth of the aggregate number of Shares to
be purchased on such date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares that such
Underwriter agreed to purchase hereunder on such date plus such Underwriter’s
pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate number of Shares
that remain unpurchased on the Closing Date or the Additional Closing Date, as
the case may be, exceeds one-tenth of the aggregate amount of Shares to be
purchased on such date, or if the Company shall not exercise the right described
in paragraph (b) above, then this Agreement or, with respect to any Additional
Closing Date, the obligation of the Underwriters to purchase Shares on the
Additional Closing Date shall terminate without liability on the part of the
non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 10 shall be without liability on the part of the
Company, except that the Company will continue to be liable for the payment of
expenses as set forth in Section 11 hereof and except that the provisions
of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its
default.
11. Payment of
Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder, including
without limitation, (i) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Shares and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package
and the Prospectus (including all exhibits, amendments and supplements thereto)
and the distribution thereof; (iii) the costs of reproducing and
distributing each of the documents related to the offering; (iv) the fees and
expenses of the Company’s counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification of the
Shares under the state or foreign securities or blue sky laws of such
jurisdictions as the Representatives may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Underwriters); (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer agent and any
registrar; (viii) all expenses and application fees incurred in connection with
any filing with, and clearance of the offering by, FINRA; (ix) all expenses
incurred by the Company in connection with any “road show” presentation to
potential investors; and (x) all expenses and application fees related to the
listing of the Shares on the Exchange.
(b) If
(i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any
reason fails to tender the Shares for delivery to the Underwriters as provided
herein or (iii) the Underwriters decline to purchase the Shares for any reason
permitted under Section 6 of this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket costs and expenses (including the fees and
expenses of their counsel) reasonably incurred by the Underwriters in connection
with this Agreement and the offering contemplated hereby. It is
understood, however, that except as provided in this Section 11 and in Section
7, the Underwriters will pay all of their own costs and expenses, including, but
not limited to, the fees of their counsel.
12. Persons Entitled to Benefit
of Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and any controlling persons referred to in Section 7
hereof. Nothing in this Agreement is intended or shall be construed
to give any other person any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
13. Survival. The
respective indemnities, rights of contribution, representations, warranties and
agreements of the Company and the Underwriters contained in this Agreement or
made by or on behalf of the Company or the Underwriters pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company or the Underwriters.
14. Certain Defined
Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term “affiliate” has the meaning set forth in
Rule 405 under the Securities Act; (b) the term “business day” means any day
other than a day on which banks are permitted or required to be closed in New
York City.
15. Miscellaneous.
(a) Authority of Citigroup Global
Markets Inc. and X.X. Xxxxxx Securities Inc. Any action by the
Underwriters hereunder may be taken by Citigroup Global Markets Inc. and X.X.
Xxxxxx Securities Inc. on behalf of the Underwriters, and any such action taken
by Citigroup Global Markets Inc. or X.X. Xxxxxx Securities Inc. shall be binding
upon the Underwriters.
(b) Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any
standard form of telecommunication. Notices to the Underwriters shall
be given to the Representatives c/o Citigroup Global Markets Inc., c/o Citigroup
Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(fax: (212) 816-754); Attention : Xxxx Xxxxxxxx, with a copy to Xxxxxx Xxxxxx
& Xxxxxxx LLP, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx
(fax: (000) 000-0000). Notices to the Company shall be
given to it at 0 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000, (fax: (000)
000-0000); Attention: General Counsel, with a copy to Vorys, Xxxxx, Xxxxxxx and
Xxxxx LLP, 00 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000,
Attention: Xxxxxx X. Xxxxxx, Xx. (fax: (000)
000-0000).
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such state.
(d) Counterparts. This
Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same
instrument.
(e) Amendments or
Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(f) Headings. The
headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
If
the foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
Very
truly yours,
M/I
HOMES, INC.
By:
Name:
Title:
Accepted:
__________, 2009
CITIGROUP
GLOBAL MARKETS INC.
X.X.
XXXXXX SECURITIES INC.
For
themselves and on behalf of the
several
Underwriters listed
in
Schedule 1 hereto.
CITIGROUP
GLOBAL MARKETS INC.
By: ___________________________
Authorized Signatory
X.X.
XXXXXX SECURITIES INC.
By:
___________________________
Authorized Signatory
Schedule
1
Underwriter
|
Number of Shares
|
||
Citigroup
Global Markets Inc.
|
1,848,750
|
||
X.X.
Xxxxxx Securities Inc.
|
1,848,750
|
||
Credit Suisse Securities (USA)
LLC
|
130,500
|
||
JMP
Securities LLC
|
130,500
|
||
Xxxxxx
Xxxxxx & Company, Inc.
|
130,500
|
||
PNC
Capital Markets LLC
|
130,500
|
||
The
Huntington Investment Co.
|
130,500
|
||
Total
|
4,350,000
|
||
Schedule
2
Subsidiaries
M/I
Financial Corp., an Ohio corporation
|
||
MHO,
LLC, a Florida limited liability company
|
||
M/I
Homes Service, LLC, an Ohio limited liability
company
|
||
M/I
Properties, LLC, an Ohio limited liability company
|
||
Northeast
Office Venture, LLC, a Delaware limited liability
company
|
||
M/I
Title Agency, Ltd., an Ohio limited liability company
|
||
M/I
Homes First Indiana, LLC, an Indiana limited liability
company
|
||
Washington/Metro
Residential Title Agency, LLC, a Virginia limited liability
company
|
||
M/I
Homes Second Indiana LLC, an Indiana limited liability
company
|
||
M/I
Homes Indiana, L.P., an Indiana limited partnership
|
||
M/I
Homes of Florida, LLC, a Florida limited liability
company
|
||
M/I
Homes of Tampa, LLC, a Florida limited liability
company
|
||
M/I
Homes of Orlando, LLC, a Florida limited liability
company
|
||
M/I
Homes of West Palm Beach, LLC, a Florida limited liability
company
|
||
MHO
Holdings, LLC, a Florida limited liability company
|
||
M/I
Homes of Charlotte, LLC a Delaware limited liability
company
|
||
M/I
Homes of Raleigh, LLC, a Delaware limited liability
company
|
||
M/I
Homes of DC, LLC, a Delaware limited liability company
|
||
M/I
Homes of Cincinnati, LLC, an Ohio limited liability
company
|
||
M/I
Homes of Central Ohio, LLC, an Ohio limited liability
company
|
||
The
Fields at Perry Hall, LLC, a Maryland limited liability
company
|
||
Xxxxxx
Farm, LLC, a Maryland limited liability company
|
||
TransOhio
Residential Title Agency Ltd., an Ohio limited liability
company
|
||
K-Tampa,
LLC, a Florida limited liability company
|
||
M/I-Majestic
Oaks GP, LLC, a Florida limited liability company
|
||
M/I
Insurance Agency, LLC, an Ohio limited liability
company
|
||
M/I
Homes of Chicago, LLC, a Delaware limited liability
company
|
--
Schedule
3
Joint
Ventures
JOINT VENTURE NAME
|
NAMES OF PARTNERS
|
%
of OWNERSHIP
|
||
COLUMBUS
JOINT VENTURES
|
||||
Xxxxx
Road
|
M/I
Homes of Central Ohio, LLC
|
00
|
||
(Xxx
Xxxx/Xxxxx Xxxx - Xxxxxxxx)
|
Xxxxxxxx
Homes, Inc.
|
50
|
||
(Villages
@ Sycamore Creek - Horizon)
|
||||
Cheshire
Road LLC
|
M/I
Homes of Central Ohio, LLC
|
00
|
||
(Xxxxxxxx
Xxxxxxxx)
|
Dominion
Homes, Inc.
|
50
|
||
(Cheshire
Crossing West)
|
||||
Hidden
Creek South, LLC
|
M/I
Homes of Central Ohio, LLC
|
50
|
||
Xxxxxx
Homes of Ohio, LLC
|
50
|
|||
Xxxxx
at Xxxxxxxxx, Ltd.
|
M/I
Homes of Central Ohio, LLC
|
00
0/0
|
||
(Xxxxxxxx
Xxxxx)
|
Xxxxxxxx
Homes, Inc.
|
33
1/3
|
||
(Xxxxxxxx
Xxxxx)
|
Homewood
Corporation
|
33
1/3
|
||
(Willow
Xxxxx - XxXxxx/Curb Appeal)
|
||||
(Cedar
Run - Sicaras)
|
||||
Broad/Xxxxxxxx
Associates, LLC
|
M/I
Homes of Central Ohio, LLC
|
50
|
||
(Summerlyn)
|
Dominion
Homes, Inc.
|
50
|
||
TAMPA
JOINT VENTURES
|
||||
Palm
Cove Developers, LLC
|
M/I
Homes of Tampa, LLC
|
50
|
||
Ashton
Tampa Residential, LLC
|
50
|
|||
Triple
Creek, LLC
|
M/I
Homes of Tampa, LLC
|
50
|
||
Centex
Homes
|
50
|
|||
Majestic
Oaks Developers
|
M/I
Homes of Tampa, LLC
|
49.9
|
||
M/I-Majestic
Oaks GP, LLC
|
0.1
|
|||
Avatar
Properties, Inc.
|
49.9
|
|||
Avatar-Majestic
Oaks GP, LLC
|
0.1
|
|||
Long
Lake Ranch, LLC
|
M/I
Homes of Tampa, LLC
|
50
|
||
Beazer
Homes Corp.
|
50
|
|||
ORLANDO JOINT
VENTURE
|
||||
Xxxxxxxxx
Ventures, LLC
|
M/I
Homes of Orlando, LLC
|
50
|
||
Beazer
Homes Corp.
|
50
|
Annex
B
a. Pricing Disclosure
Package
Issuer
Free Writing Prospectus dated May 19, 2009
Common
shares offered by the Company: 4,350,000 (plus 30-day over-allotment option of
650,000)
Public
Offering Price: $12.50
Annex D
Significant
Subsidiaries
M/I
Financial Corp.
M/I
Homes of Florida, LLC
M/I
Homes of Tampa, LLC
M/I
Homes of Central Ohio, LLC
M/I
Homes of DC, LLC
Exhibit
A
FORM
OF LOCK-UP AGREEMENT
, 2009
CITIGROUP
GLOBAL MARKETS INC.
X.X.
XXXXXX SECURITIES INC.
As
Representatives of
the
several Underwriters listed in
Schedule
1 to the Underwriting
Agreement
referred to below
c/o
Citigroup Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Re: M/I
Homes, Inc. --- Public Offering
Ladies
and Gentlemen:
The
undersigned understands that you, as Representatives of the several
Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with M/I Homes, Inc., an Ohio corporation (the “Company”), providing
for the public offering (the “Public Offering”) by the several Underwriters
named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of
common shares, of the Company (the “Securities”). Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Underwriting
Agreement.
In
consideration of the Underwriters’ agreement to purchase and make the Public
Offering of the Securities, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of Citigroup Global Markets Inc.
and X.X. Xxxxxx Securities Inc., on behalf of the Underwriters, the undersigned
will not, during the period ending 60 days after the date of the prospectus
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, announce
the intention to sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any common shares, $0.01 per share par value, of the Company (the
“Common Shares”) or any securities convertible into or exercisable or
exchangeable for Common Shares (including without limitation, Common Shares
which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations of the Securities and Exchange Commission and
securities which may be issued upon exercise of a stock option or warrant) or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Shares, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Shares or such other securities, in cash or otherwise or (3)
make any demand for or exercise any right with respect to the registration of
any Common Shares or any security convertible into or exercisable or
exchangeable for Common Shares without the prior written consent of the
Representatives, in each case other than (A) transfers of Common Shares as a
bona fide gift or gifts, (B) transfers of Common Shares to any trust,
limited partnership or other entity for the direct or indirect benefit of the
undersigned or his or her immediate family members or spouses, provided that any
such transfer shall not involve a disposition for value and (C) transfers of
Common Shares to any third party granted an interest in the will of the
undersigned or under the laws of descent; provided that in the
case of any transfer or distribution pursuant to clause (A), (B) or (C), each
donee or distributee shall execute and deliver to the Representatives a lock-up
letter in the form of this paragraph; and provided, further, that in the
case of any transfer or distribution pursuant to clause (A), (B) or (C), no
filing by any party (donor, donee, transferor or transferee) under the
Securities Exchange Act of 1934, as amended, or other public announcement shall
be required or shall be made voluntarily in connection with such transfer or
distribution (other than a filing on a Form 5 made after the expiration of the
60-day period referred to above). In addition, the undersigned agrees that,
without the prior written consent of Citigroup Global Markets Inc. and X.X.
Xxxxxx Securities Inc. on behalf of the Underwriters, it will not, during the
period ending 60 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any Common Shares or any
security convertible into or exercisable or exchangeable for Common
Shares. Notwithstanding the foregoing, if (1) during the last 17 days
of the 60-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 60-day restricted period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day
of the 60-day period, the restrictions imposed by this Letter Agreement shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event.
In
furtherance of the foregoing, the Company, and any duly appointed transfer agent
for the registration or transfer of the securities described herein, are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Letter Agreement.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Letter Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The
undersigned understands that, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for
and delivery of the Common Shares to be sold thereunder, the undersigned shall
be released from, all obligations under this Letter Agreement. The
undersigned understands that the Underwriters are entering into the Underwriting
Agreement and proceeding with the Public Offering in reliance upon this Letter
Agreement.
This
Letter Agreement shall be governed by and construed in accordance with the laws
of the State of New York, without regard to the conflict of laws principles
thereof.
Very
truly yours,
[NAME OF
STOCKHOLDER]
By:
Name:
Title: