Exhibit 1.1
EXECUTION COPY
The Interpublic Group of Companies, Inc.
22,398,400 Common Stock
Underwriting Agreement
New York, New York
December 16, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
The Interpublic Group of Companies, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, an aggregate of 22,398,400 shares (the "Firm
Securities") of common stock, $0.10 par value per share (the "Common Stock"), of
the Company. The Company also proposes to grant to the Underwriters an option to
purchase up to 3,359,760 shares of Common Stock to cover over-allotments, if any
(the "Option Securities" and, together with the Firm Securities, the
"Securities"). To the extent there are no additional parties listed on Schedule
I other than you, the term Representatives as used herein shall mean you as the
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used herein are defined in Section 16 hereof.
The Company has prepared and filed with the Commission a registration
statement on Form S-3 (File No. 333-109384), including a base prospectus, for
the registration of certain securities of the Company under the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Act"), and the offering thereof from time to time in
accordance with Rule 415 of the Act (as amended and including the exhibits and
schedules thereto and all documents incorporated by reference therein pursuant
to Item 12 of Form S-3 at the time such registration statement was first
declared effective by the Commission, the "Registration Statement"). From and
after the date and time a registration statement is filed by the Company
pursuant to Rule 462(b) under the Act (the "Rule 462(b) Registration
Statement"), if one is so filed, in connection with the offering of the
Securities, the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The Registration Statement (and each post-effective
amendments thereto that may be required prior to Execution Time) has been
declared effective by the Commission.
In connection with the sale of the Securities, the Company has
prepared, and filed with the Commission pursuant to Rule 424(b) under the Act, a
preliminary prospectus supplement for use by the Underwriters prior to the
Execution Time, which omitted information to be included upon pricing of the
Securities (such preliminary prospectus supplement, together with the base
prospectus included in the Registration Statement and including all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 prior to the
execution of this Agreement, the "Preliminary Prospectus"). The Company agrees
to prepare and promptly file with the Commission a final prospectus supplement
that includes pricing information for the Securities (such final prospectus
supplement, together with the base prospectus included in the Registration
Statement and including all documents incorporated by reference therein pursuant
to Item 12 of Form S-3, in the form first furnished to the Underwriters by the
Company for use in connection with the offering of the Securities, the
"Prospectus").
All references in this Agreement to the Registration Statement, the
Rule 462(b) Registration Statement, the Prospectus or the Preliminary
Prospectus, or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (and all
other references of like import) in the Registration Statement, the Prospectus
or the Preliminary Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement, the Prospectus or
the Preliminary Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, the
Prospectus or the Preliminary Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement, the Prospectus or the
Preliminary Prospectus, as the case may be.
1. Representations and Warranties. The Company represents and warrants
to each Underwriter as set forth below in this Section 1.
(a) The Registration Statement has been declared effective under
the Act; to the best knowledge of the Company, no stop order of the
Commission preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose have
been instituted or, to the Company's knowledge, are contemplated by
the Commission; the Registration Statement complied when it became
effective and complies in all material respects with the requirements
of the Act; the Company meets the requirements for use of Form S-3
under the Act and the conditions for the use of Form S-3 have been
satisfied; the Registration Statement did not when it became
effective, as of the date hereof and as of the Closing Date (as
defined in Section 3), does not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus 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 therein; and the Company has not distributed and
will not distribute any offering material in connection with the
offering or sale of the Securities other than the Registration
Statement, a Preliminary Prospectus and the Prospectus.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in either the
Preliminary Prospectus or the Prospectus complied or will comply when
so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder and (ii)
each Preliminary Prospectus does not contain, and the Prospectus, in
the form used by the Underwriters to confirm sales, does not and, on
the Closing Date and on the Settlement Date (as defined in Section 2),
will not (and any amendment or supplement thereto, at the date
thereof, at the Closing Date and, as applicable, the Settlement Date,
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.
Each Preliminary Prospectus and the Prospectus complied, at the time
of filing thereof, complies and will comply, at the Closing Date and,
as applicable, the Settlement Date, in all material respects with the
requirements of the Act. All statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own or
lease its property and to conduct its business as described in the
Registration Statement, each Preliminary Prospectus and the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated or
formed, is validly existing as a corporation, limited liability
company or similar entity in good standing under the laws of the
jurisdiction of its incorporation or formation, has the corporate
power and authority to own or lease its property and to conduct its
business as described in the Registration Statement, each Preliminary
Prospectus and the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
all of the issued shares of capital stock, membership interests or
other equity interests of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims, except
to the extent that the failure to be so authorized, issued and fully
paid and non-assessable and so owned would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Securities have been duly authorized and, when issued and
delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights
and similar rights and will conform to the description thereof
contained in the Prospectus; the certificates for the Securities are
in due and proper form and the holders of the Securities will not be
subject to personal liability by reason of being such holders.
(g) The Company's authorized and outstanding capitalization is as
set forth in the Registration Statement and the Prospectus, and the
capital stock of the Company conforms in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and non-assessable;
the holders of the outstanding shares of capital stock of the Company
are not entitled to any preemptive or other rights to subscribe for
the Securities; and, except as set forth in the Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(h) Except as set forth in the Registration Statement and the
Prospectus, no person has the right, contractual or otherwise, to
cause the Company to register under the Act any shares of capital
stock or other equity interests of the Company, or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
and the consummation of the transactions or actions contemplated by
the Registration Statement and the Prospectus will not contravene (i)
any provision of applicable law, (ii) the Restated Certificate of
Incorporation or By-Laws of the Company, (iii) any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole
(including, without limitation, the Credit Agreements, as amended as
of the Closing Date), or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary (except, in the case of clauses (i) and
(iii) above, for such contraventions that would not have a material
adverse effect on the Company and its subsidiaries taken as a whole),
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, and the
consummation of the transactions or actions contemplated by the
Registration Statement and the Prospectus, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities or which has
already been obtained, taken or made.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto filed subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement, each Preliminary
Prospectus or the Prospectus and that are not so described or any
statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement, each Preliminary
Prospectus or the Prospectus or to be incorporated by reference as
exhibits to either the Registration Statement or the Prospectus that
are not described or incorporated as required; the statements included
or incorporated by reference in the Registration Statement, each
Preliminary Prospectus and the Prospectus relating to the
investigation of the Company by the Commission do not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make such statements, in the light of the circumstances
in which they were made, not misleading.
(l) The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended.
(m) Neither the Company, nor to the Company's knowledge, any of
its affiliates, directly or indirectly, has taken or may take any
action designed, or which has constituted or might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(n) PricewaterhouseCoopers LLP, who certified the financial
statements and any supporting schedules thereto included or
incorporated by reference in the Registration Statement and the
Prospectus, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder. Xxxxxx Xxxxxxxx LLP, who certified
the consolidated financial statements of True North Communications
Inc. for the three years ended December 31, 2000, were, at the times
when such financial statements were prepared and certified and when
the most recent consent with respect to such financial statements was
filed with the Commission, independent public accountants within the
meaning of the Act.
(o) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial condition, results of operations and cash flows
of the Company as of the dates and for the periods indicated, comply
as to form with the applicable accounting requirements 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); the selected
financial data incorporated by reference in the Registration Statement
and the Prospectus fairly present, on the basis stated therein, the
information included therein.
(p) Except as set forth or contemplated in the Prospectus, the
Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that,
on a consolidated basis, (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; the
disclosure controls and procedures (as such term is defined in Rule
13a-14 and 15d-14 under the Exchange Act) of the Company and its
consolidated subsidiaries provide reasonable assurance that material
information relating to the Company and its consolidated subsidiaries
is made known to the Company's principal executive and financial
officers and, based on an evaluation conducted not earlier than
September 30, 2003, except as set forth in the Registration Statement,
each Preliminary Prospectus and the Prospectus, there are no
significant deficiencies or weaknesses in such internal controls that
could adversely affect the Company's ability to record, process,
summarize and report financial data and other information required to
be disclosed in the reports filed or furnished by the Company pursuant
to the Exchange Act.
(q) Except as disclosed in the Prospectus, the Company does not
intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of any
Underwriter.
(r) Since July 30, 2002, the Company has not, directly or
indirectly (through any subsidiary or otherwise), extended or
maintained credit, or arranged for or renewed an extension of credit,
in the form of a personal loan to any director or officer, except to
the extent permitted under Section 13 of the Exchange Act.
(s) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $12.85875 per share of Common
Stock, the number of Firm Securities set forth opposite such Underwriter's name
in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, the
Option Securities at the same purchase price as the Underwriters paid for the
Firm Securities, to the settlement date for the Option Securities (the
"Settlement Date"). The option may be exercised only to cover over-allotments in
the sale of the Firm Securities by the Underwriters. The option may be exercised
in whole or in part at any time (but not more than once) not less than three
Business Days prior to the 30th day after the date of the Closing Date upon
written notice by the Representatives to the Company setting forth the number of
Option Securities as to which the Underwriters are exercising the option and the
Settlement Date. Delivery of the Option Securities, and payment therefor, shall
be made as provided in Section 3 hereof. The Settlement Date for the Option
Securities, if any, shall not be more than 30 days after the Closing Date. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage as such Underwriter is purchasing of the Firm Securities,
subject to such adjustments as the Representatives shall deem advisable.
3. Delivery and Payment. Delivery of and payment for the Firm
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the second Business Day prior to
the Closing Date) shall be made at 10:00 A.M., New York City time, on December
19, 2003, or at such time on such later date (not more than three Business Days
after the foregoing date) as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to the account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
If the option provided for in Section 2(b) hereof is exercised after
the second Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives on the
date specified by the Representatives (which shall be three Business Days after
exercise of said option), for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to the account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the Settlement Date,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Agreements. The Company agrees with each Underwriter that:
(a) The Company will furnish to each Underwriter and to counsel
for the Underwriters, without charge, during the period referred to in
paragraph (d) below, as many copies of the Prospectus and any
amendments and supplements thereto as it may reasonably request.
(b) The Company will advise the Representatives promptly,
confirming such advice in writing, of any request by the Commission
for amendments or supplements to the Registration Statement or the
Prospectus or for additional information with respect thereto, or of
notice of institution of proceedings for, or the entry of a stop
order, suspending the effectiveness of the Registration Statement and,
if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, the Company will use its
best efforts to obtain the lifting or removal of such order as soon as
possible. If it is necessary for any post-effective amendment to the
Registration Statement to be declared effective before the Securities
may be sold, the Company will endeavor to cause such post-effective
amendment to become effective as soon as possible and the Company will
advise the Representatives promptly and, if requested, will confirm
such advice in writing, when any such post-effective amendment has
become effective.
(c) The Company will file promptly all reports and any definitive
proxy or information statement required to be filed by the Company
with the Commission in order to comply with the Exchange Act during
the period referred to in paragraph (d) below.
(d) The Company will not amend or supplement the Registration
Statement or the Prospectus, other than by filing documents under the
Exchange Act that are incorporated by reference therein, without the
prior written consent of the Representatives; provided, however, that,
prior to the completion of the distribution of the Securities by the
Underwriters (as determined by the Underwriters and communicated to
the Company), the Company will not file any document under the
Exchange Act that is incorporated by reference in the Registration
Statement or the Prospectus unless, at a reasonable time prior to such
proposed filing, the Company has furnished the Representatives with a
copy of such document for their review and the Representatives have
not reasonably objected to the filing of such document. The Company
will promptly advise the Representatives when any document filed under
the Exchange Act that is incorporated by reference in the Registration
Statement or the Prospectus shall have been filed with the Commission.
(e) If at any time prior to the completion of the distribution of
the Securities by the Underwriters (as determined by the
Representatives), any event occurs 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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
should be necessary to amend or supplement the Prospectus to comply
with applicable law, the Company promptly (i) will notify the
Representatives of any such event; (ii) subject to the requirements of
paragraph (d) of this Section 4, will prepare an amendment or
supplement that will correct such statement or omission or effect such
compliance; and (iii) will supply any supplemented or amended
Prospectus to the several Underwriters and counsel for the
Underwriters without charge in such quantities as they may reasonably
request.
(f) The Company will arrange, if necessary, for the qualification
of the Securities for sale by the Underwriters under the laws of such
jurisdictions as the Underwriters may designate and will maintain such
qualifications in effect so long as required for the sale of the
Securities; provided that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
The Company will promptly advise the Representatives of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(g) The Company will make generally available to its security
holders, and to deliver to the Representatives, an earnings statement
of the Company (which will satisfy the provisions of Section 11(a) of
the Act) covering a period of twelve months beginning after the
effective date of the Registration Statement (as defined in Rule
158(c) under the Act) as soon as is reasonably practicable after the
termination of such twelve-month period but not later than March 16,
2005.
(h) The Company will cooperate with the Representatives and use
its best efforts to permit the Securities to be eligible for clearance
and settlement through The Depository Trust Company.
(i) The Company will not for a period of 90 days following the
Execution Time, without the prior written consent of UBS Securities
LLC, Citigroup Global Markets Inc. and X.X. Xxxxxx Securities Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of, or
enter into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any Affiliate of the Company or any
person in privity with the Company or any Affiliate of the Company,
directly or indirectly of, or file (or participate in the filing of) a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange
Act and the rules and regulations of the Commission promulgated
thereunder with respect to, any shares of capital stock of the Company
or any securities convertible or exercisable or exchangeable for such
capital stock, or publicly announce an intention to effect any such
transaction; provided, however, that (i) the Company may issue and
sell Common Stock or issue options for the purchase of its Common
Stock, and file related registration statements, pursuant to any
employee stock incentive plan or outside director stock incentive
plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time, (ii) the Company may issue
Common Stock issuable upon the conversion or exchange of securities or
the exercise of warrants or options outstanding at the Execution Time,
or hereafter granted under the Company's stock incentive plans that
exist as of the Execution Time, (iii) the Company may issue and sell
the Securities and do other acts contemplated by this Agreement, (iv)
the Company may issue and sell the 5 3/8% Series A Mandatory
Convertible Preferred Stock (the "Preferred Stock") as contemplated in
the Prospectus and may issue Common Stock issuable upon the conversion
of the Preferred Stock, (v) the Company may issue Common Stock as
consideration for purchases or acquisitions of other businesses or
entities, provided, however, that any such Common Stock issued as
consideration for any such purchases or acquisitions entered into
during the 90-day period following the Execution Time shall amount in
the aggregate to no more than $15 million; (vi) the Company may issue
Common Stock as part of any deferred payment to be made under and in
accordance with any acquisition-related agreement or any obligation to
issue Common Stock in connection with contractual put or call
obligations either existing at the Execution Time or entered into
during the 90-day period following the Execution Time, provided,
however, that Common Stock issued as obligations for any such deferred
payment or obligations entered into during such 90-day period shall
amount in the aggregate, including amounts paid under clause (v)
hereof, to no more than $15 million, (vii) the Company may pay
dividends on the Securities in shares of Common Stock, (viii) the
Company may issue Common Stock in connection with the settlement of
litigation matters ongoing at the Execution Time as agreed to by the
Company and the Representatives on the date hereof, and (ix) the
Company may file registration statements or amendments thereto in
respect of the 4.5% Convertible Senior Notes Due 2023 (the "4.5%
Notes") of the Company and shares of Common Stock issuable upon
conversion of the 4.5% Notes.
(j) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(k) The Company will use its best efforts to cause the Securities
to be listed on the New York Stock Exchange (the "NYSE").
(l) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the issuance of the Securities; (ii) the
preparation, printing or reproduction of the Registration Statement,
the Preliminary Prospectus and the Prospectus and each amendment or
supplement thereto; (iii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and
packaging) of such copies of the Preliminary Prospectus and the
Prospectus, and all amendments or supplements thereto, as may, in each
case, be reasonably requested for use in connection with the offering
and sale of the Securities; (iv) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities to the Underwriters;
(v) the printing (or reproduction) and delivery of this Agreement, any
Blue Sky memorandum, the closing documents and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) any registration or qualification of
the Securities for offer and sale under the securities or Blue Sky
laws of the several states or foreign laws and any other jurisdictions
specified pursuant to Section 4(f) (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating
to such registration and qualification); (vii) the listing of the
Securities on the NYSE; (viii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the
Company; (x) any filing for review of the public offering of the
Securities by the NASD, including reasonable legal fees and the filing
fees and other disbursements of counsel to the Underwriters with
respect thereto; (xi) the fees and disbursements of any transfer agent
or registrar for the Securities; and (xii) all other costs and
reasonable expenses incident to the performance by the Company of its
obligations hereunder.
(m) The Company will apply the proceeds from the sale of the
Securities in the manner described in the Prospectus.
(n) Prior to the completion of the distribution of the
Securities, the Company will promptly notify the Representatives of
any material development relating to any investigation of the Company
conducted by the Commission, including the discovery of any new or
additional information that in the opinion of the Company may
reasonably be expected to affect the outcome of such investigation.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Firm Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein at the Execution Time,
the Closing Date and any Settlement Date to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Company shall have requested and caused Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, counsel for the Company, to furnish to the
Representatives its opinion and letter, dated the Closing Date and, as
applicable, the Settlement Date and addressed to the Representatives,
to the effect set forth in Exhibit A-1.
(b) The Company shall have requested and caused Xxxxxxxx X.
Camera, Esq., the General Counsel of the Company, to furnish to the
Representatives his opinion and letter, dated the Closing Date and, as
applicable, the Settlement Date and addressed to the Representatives,
to the effect set forth in Exhibit A-2.
(c) The Representatives shall have received from Shearman &
Sterling LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and, as applicable, the Settlement Date and
addressed to the Representatives, with respect to certain of the
matters referred to in paragraphs 1, 3, 4 and 5 of Exhibit A-1, and
the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling it to pass upon such matters.
In addition, such counsel shall state that (A) the Registration
Statement, as of the date of this Agreement, and the Prospectus, as of
its date, appear on their faces to have been appropriately responsive
in all material respects to the applicable requirements of the Act and
the applicable rules and regulations of the Commission thereunder; and
(B) such counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement
and the Prospectus (excluding the documents incorporated by reference)
were discussed and, although such counsel is not passing upon and does
not assume responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, no fact has come to the
attention of such counsel that gave such counsel reason to believe
that (i) the Registration Statement, as of the date of this Agreement,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Prospectus, as of its
date and the Closing Date (and, if applicable, the Settlement Date),
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the chief financial officer of
the Company and the treasurer or the controller of the Company, dated
the Closing Date and, as applicable, the Settlement Date, to the
effect that the signers of such certificate have carefully examined
the Prospectus, any amendment or supplement to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date and, as applicable, the Settlement
Date, with the same effect as if made on the Closing Date and, as
applicable, the Settlement Date, and the Company has complied
with all the agreements and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date and, as applicable, the Settlement Date; and
(ii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any amendment or
supplement thereto filed subsequent to the date of this
Agreement), there has been no material adverse change in 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, except as set forth in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto
filed subsequent to the date of this Agreement).
(e) The Underwriters shall have received on (i) the date hereof
and (ii) the Closing Date and, as applicable, the Settlement Date, a
letter, dated such date, in form and substance satisfactory to the
Underwriters, from PricewaterhouseCoopers LLC, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus, and each such letter shall use a "cut-off date" not
earlier than three days prior to the date of such letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Prospectus (exclusive of any
amendment or supplement thereto filed subsequent to the date of this
Agreement), there shall not have been (i) any change in the capital
stock, any increase in long-term debt or any decrease in consolidated
net current assets (working capital) or stockholders' equity, or any
decreases in total consolidated net sales, income from operations or
net income, of the Company with respect to the period subsequent to
September 30, 2003 other than as set forth in the letter referred to
in Section 5(e) hereof; 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 its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
amendment or supplement thereto filed subsequent to the date of this
Agreement) 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
market the Securities as contemplated by the Prospectus (exclusive of
any amendment or supplement thereto filed subsequent to the date of
this Agreement).
(g) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the
direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(i) The Company shall have caused the Securities to be approved
for listing, subject to issuance, on the NYSE.
(j) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit B
hereto from each of the directors and officers of the Company
identified in Exhibit C hereto addressed to the Representatives.
(k) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York
City time, on the second full Business Day after the date of this
Agreement and any Rule 462(b) Registration Statement required in
connection with the offering and sale of the Securities shall have
been filed and become effective no later than 10:00 p.m., New York
City time, on the date of this Agreement.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 5 will be
delivered at the office of counsel for the Underwriters, Shearman & Sterling
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, prior to 9 A.M. on the
Closing Date and any Settlement Date.
6. Reimbursement of Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9(i) hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will promptly reimburse the Underwriters severally
through UBS Securities LLC for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees, affiliates and agents
of each Underwriter and each person who controls any Underwriter
within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or in any amendment thereof, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus or the Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
therein; provided further, that with respect to any untrue statement
or omission of material fact made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 7(a) shall not inure to
the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned,
to the extent that any such loss, claim, damage or liability of such
Underwriter occurs under the circumstance where it shall have been
determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished
copies of the Prospectus to the Representatives, (x) delivery of the
Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there
was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of
the Prospectus. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each
of its officers, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the Registration
Statement, each Preliminary Prospectus, the Prospectus or in any
amendment or supplement thereto. This indemnity agreement will be in
addition to any liability that any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities,
under the heading "Underwriting" in the third paragraph under the
table relating to electronic delivery of prospectus supplements, the
first paragraph under the heading "- Commissions and Discounts"
relating to the selling concession and the paragraphs under the
heading "- Price Stabilization, Short Positions" relating to
stabilizing transactions, short sales, penalty bids and syndicate
covering transactions in the Preliminary Prospectus and the
Prospectus, constitute the only information furnished in writing by or
on behalf of the Underwriters for inclusion in the Registration
Statement, each Preliminary Prospectus, the Prospectus or in any
amendment or supplement thereto.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel
(including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel, other than local counsel if not
appointed by the indemnifying party, retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel
(including local counsel) to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties that are different from or additional to
those available to the indemnifying party; (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. If at any
time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement effected without its
written consent if (i) such settlement is entered into more than 60
Business Days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall
have given the indemnifying party at least 30 days' prior notice of
its intention to settle. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and
does not include an admission of fault, culpability or a failure to
act, by or on behalf of such indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending any
loss, claim, damage, liability or action) (collectively "Losses") to
which the Company and one or more of the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; provided, however, that in
no case shall any Underwriter (except as may be provided in any
agreement among the Underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the purchase
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total purchase discounts and
commissions in each case set forth on the cover of the Prospectus.
Relative fault shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other
method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee, Affiliate and agent
of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act and each officer and
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Underwriter.
(a) If any one or more Underwriters shall fail to purchase and
pay for any of the Securities agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal
amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities
which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate
principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule I
hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 8, the Closing Date shall
be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in
the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company or any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
(b) Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Securities hereunder unless all of the Firm Securities are
purchased by the Underwriters (or by substituted Underwriters selected by the
Company with the approval of the Representatives). The term Underwriter as used
in this Agreement shall refer to and include any Underwriter substituted under
this Section 8 with like effect as if such substituted Underwriter had
originally been named in Schedule A.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in any of the Company's securities shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices shall have been established on such
exchange; (ii) a banking moratorium shall have been declared by federal,
Delaware or New York State authorities; or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
amendment or supplement thereto filed subsequent to the date of this Agreement).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or the Company or any of
the indemnified persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 6 and 7
hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to (i) UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000 Attention: Syndicate Department; (ii) the Citigroup Global Markets Inc.
General Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel, and (ii) X.X. Xxxxxx Securities Inc., Syndicate Desk
at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 Attention: Xxxxx X. Xxxxxx
(Fax: (000) 000-0000) or, if sent to the Company, will be mailed, delivered or
telefaxed to facsimile number (000) 000-0000 and confirmed to it at (212)
399-8021, attention of General Counsel, with a copy mailed, delivered or
telefaxed to Xxxxx X. Xxx (fax no. (000) 000-0000) at Cleary, Gottlieb, Xxxxx &
Xxxxxxxx.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
indemnified persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
15. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"By-Laws" shall mean the by-laws of the Company as amended through
July 31, 2003.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Company's common stock, par value $0.10
per share.
"Credit Agreements" shall mean the 364-Day Credit Agreement, dated May
16, 2002, among the Company, the initial lenders named therein, and Citibank,
N.A., as Administrative Agent, and the Five-Year Credit Agreement, dated June
27, 2000, among the Company, the initial lenders named therein and Citibank,
N.A., as Administrative Agent, in both cases, as amended or supplemented from
time to time.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Restated Certificate of Incorporation" shall mean the restated
certificate of incorporation of the Company as amended through May 29, 2003.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the several Underwriters.
Very truly yours,
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ Xxxxxxxx X. Camera
--------------------------
Name: Xxxxxxxx X. Camera
Title: Senior Vice President
General Counsel and Secretary
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
UBS SECURITIES LLC
By: /s/ Xxxxx X. Xxx
----------------------
Name: Xxxxx X. Xxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxxx
----------------------
Name: Xxxx Xxxxxxxx
Title: Executive Directors
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxx Dunk
----------------------
Name: Xxxxx Dunk
Title: Vice President
X.X. XXXXXX SECURITIES INC.
By: /s/ J. Xxxxxx Xxxxxxx
----------------------
Name: J. Xxxxxx Xxxxxxx
Title: Managing Director
For themselves as Representatives
and on behalf of the other several
Underwriters named in Schedule I
to the foregoing Agreement
SCHEDULE I
Number of Firm
Securities to be
Underwriters Purchased
------------ ---------
UBS Securities LLC............................................. 5,599,600
Citigroup Global Markets Inc. ................................. 5,599,600
X.X. Xxxxxx Securities Inc..................................... 5,599,600
Banc of America Securities LLC................................. 1,287,908
Barclays Capital Inc........................................... 1,287,908
HSBC Securities (USA) Inc...................................... 1,287,908
Xxxxxx Xxxxxxx & Co. Incorporated.............................. 1,287,908
ING Financial Markets LLC...................................... 223,984
XxXxxxxx Investment Inc., A KeyCorp Company.................... 223,984
-----------
Total................................................. 22,398,400
EXHIBIT A-1
[FORM OF OPINION OF CLEARY, GOTTLIEB, XXXXX & XXXXXXXX]
December 19, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special counsel to The Interpublic Group of
Companies, Inc., a Delaware corporation (the "Company"), in connection with the
Company's offering pursuant to a registration statement on Form S-3 (No.
333-109384) of 22,398,400 shares of its common stock, $0.10 par value per share
(the "Securities"). Such registration statement, as amended when it became
effective but excluding the documents incorporated by reference therein, is
herein called the "Registration Statement;" the related prospectus dated
November 20, 2003, as first filed with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 424(b)(2) under the Securities Act of 1933,
as amended (the "Securities Act"), but excluding the documents incorporated by
reference therein, is herein called the "Base Prospectus;" the prospectus
supplement dated December 16, 2003, as first filed with the Commission pursuant
to Rule 424(b)(5) under the Securities Act, but excluding the documents
incorporated by reference therein, is herein called the "Prospectus Supplement;"
and the Base Prospectus and the Prospectus Supplement together are herein called
the "Prospectus." This opinion letter is furnished to you pursuant to Section
5(a) of the underwriting agreement dated December 16, 2003 (the "Underwriting
Agreement") between the Company and the several underwriters named in Schedule I
thereto (the "Underwriters").
In arriving at the opinions expressed below, we have reviewed the
following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by reference
therein;
(c) the Prospectus and the documents incorporated by reference therein;
(d) a specimen of the Securities as executed by the Company; and
(e) the documents delivered to you by the Company at the closing pursuant to
the Underwriting Agreement, including copies of the Company's Restated
Certificate of Incorporation and By-Laws, each as amended through December
17, 2003 and July 31, 2003, respectively, certified by the Secretary of
State of the State of Delaware and the corporate secretary of the Company,
respectively.
In addition, we have reviewed the originals or copies certified or otherwise
identified to our satisfaction of all such corporate records of the Company and
such other instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified (i) the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Underwriting Agreement) and
(ii) that the Securities conform to the form thereof that we have reviewed.
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
1. The Company is validly existing as a corporation in good standing under the
laws of the State of Delaware.
2. The Company has corporate power to issue the Securities, to enter into the
Underwriting Agreement and to perform its obligations thereunder.
3. The Securities have been duly authorized by all necessary corporate action of
the Company, have been validly issued by the Company and are fully paid and
nonassessable; and the holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights to subscribe for the
Securities under the Restated Certificate of Incorporation or By-Laws, each as
amended, of the Company or the General Corporation Law of the State of Delaware
(the "DGCL").
4. The statements set forth under the headings "Description of Common Stock" in
the Prospectus, insofar as such statements purport to summarize certain
provisions of the Securities and the Restated Certificate of Incorporation, as
amended, provide a fair summary of such provisions, and the statements made in
the Prospectus under the heading "Certain U.S. Income Tax Considerations,"
insofar as such statements purport to summarize certain federal income tax laws
of the United States, constitute a fair summary of the principal U.S. federal
income tax consequences of an investment in the Securities.
5. The execution and delivery of the Underwriting Agreement have been duly
authorized by all necessary corporate action of the Company, and the
Underwriting Agreement has been duly executed and delivered by the Company.
6. The issuance and sale of the Securities to the Underwriters pursuant to the
Underwriting Agreement do not, and the performance by the Company of its
obligations in the Underwriting Agreement and the Securities will not, (a)
require any consent, approval, authorization, registration or qualification of
or with any federal governmental authority or governmental authority of the
State of Delaware or the State of New York that in our experience is normally
applicable to general business entities in relation to transactions of the type
contemplated by the Underwriting Agreement or the Securities, except such as
have been obtained or effected under the Securities Act and the Securities
Exchange Act of 1934, as amended (but we express no opinion relating to any
state securities or Blue Sky laws), (b) result in a violation of the Restated
Certificate of Incorporation or By-Laws, each as amended, of the Company, or (c)
result in a violation of any United States federal, Delaware or New York state
law or published rule or regulation that in our experience is normally
applicable to general business entities in relation to transactions of the type
contemplated in the Underwriting Agreement (but we express no opinion relating
to the United States federal securities laws or any state securities or Blue Sky
laws).
7. No registration of the Company under the U.S. Investment Company Act of 1940,
as amended, is required for the offer and sale of the Securities by the Company
in the manner contemplated by the Underwriting Agreement and the Prospectus and
the application of the proceeds thereof as described in the Prospectus.
Insofar as the foregoing opinions relate to the valid existence and
good standing of the Company, they are based solely on a certificate of good
standing received from the Secretary of State of the State of Delaware and on a
telephonic confirmation from such Secretary of State. Insofar as the foregoing
opinions relate to the validity, binding effect or enforceability of any
agreement or obligation of the Company, (a) we have assumed that the Company and
each other party to such agreement or obligation has satisfied those legal
requirements that are applicable to it to the extent necessary to make such
agreement or obligation enforceable against it (except that no such assumption
is made as to the Company regarding matters of the federal law of the United
States of America, the law of the state of New York or the law of the State of
Delaware, that in our experience are normally applicable to general business
entities in relation to the transactions contemplated in the Underwriting
Agreement), and (b) such opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
The foregoing opinions are limited to the federal law of the United
States of America, the law of the State of New York and the DGCL.
We are furnishing this opinion letter to you, as Representatives of
the Underwriters, solely for the benefit of the Underwriters in their capacity
as such in connection with the offering of the Securities. This opinion letter
is not to be relied on by or furnished to any other person or used, circulated,
quoted or otherwise referred to for any other purpose. We assume no obligation
to advise you, or to make any investigations, as to any legal developments or
factual matters arising subsequent to the date hereof that might affect the
opinions expressed herein.
Very truly yours,
CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
By
-----------------------------------
, a Partner
[FORM OF 00X-0 XXXXXX XX XXXXXX, XXXXXXXX, XXXXX & XXXXXXXX]
December 19, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special counsel to The Interpublic Group of
Companies, Inc., a Delaware corporation (the "Company"), in connection with the
Company's offering pursuant to a registration statement on Form S-3 (No.
333-109384) of 22,398,400 shares of its common stock, $0.10 par value per share
(the "Securities"). Such registration statement, as amended when it became
effective but excluding the documents incorporated by reference therein, is
herein called the "Registration Statement;" the related prospectus dated
November 20, 2003, as first filed with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 424(b)(2) under the Securities Act of 1933,
as amended (the "Securities Act"), but excluding the documents incorporated by
reference therein, is herein called the "Base Prospectus;" the prospectus
supplement dated December 16, 2003, as first filed with the Commission pursuant
to Rule 424(b)(5) under the Securities Act, but excluding the documents
incorporated by reference therein, is herein called the "Prospectus Supplement;"
and the Base Prospectus and the Prospectus Supplement, together are herein
called the "Prospectus." This letter is furnished to you pursuant to Section
5(a) of the underwriting agreement dated December 16, 2003 (the "Underwriting
Agreement") between the Company and the several Underwriters named in Schedule I
thereto (the "Underwriters").
Because the primary purpose of our professional engagement was not to
establish or confirm factual matters or financial, accounting or statistical
information, and because many determinations involved in the preparation of the
Registration Statement and the Prospectus and the documents incorporated by
reference therein are of a wholly or partially non-legal character or relate to
legal matters outside the scope of our opinion letter to you of even date
herewith, we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or the documents incorporated by
reference therein (except to the extent expressly set forth in numbered
paragraph 6 of our opinion letter to you of even date herewith) and we make no
representation that we have independently verified the accuracy, completeness or
fairness of such statements (except as aforesaid).
However, in the course of our acting as special counsel to the Company
in connection with its preparation of the Registration Statement and the
Prospectus, we participated in conferences and telephone conversations with
representatives of the Company, representatives of the independent public
accountants for the Company, your representatives and representatives of your
counsel, during which conferences and conversations the contents of the
Registration Statement and Prospectus, portions of certain of the documents
incorporated by reference therein and related matters were discussed, and we
reviewed certain corporate records and documents furnished to us by the Company.
Based on our participation in such conferences and conversations and
our review of such records and documents as described above, our understanding
of the U.S. federal securities laws and the experience we have gained in our
practice thereunder, we advise you that:
(a) The Registration Statement (except the financial statements
and schedules and other financial and statistical data included
therein, as to which we express no view), at the time it became
effective, and the Prospectus (except as aforesaid), as of the date
thereof, appeared on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act and the
rules and regulations thereunder. In addition, we do not know of any
contracts of other documents of a character required to be filed as
exhibits to the Registration Statement or required to be described in
the Registration Statement or the Prospectus that are not filed or
described as required.
(b) The documents incorporated by reference in the Registration
Statement and the Prospectus (except the financial statements and
schedules and other financial and statistical data included therein,
as to which we express no view), as of the respective dates of their
filing with the Commission, appeared on their face to be appropriately
responsive in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
(c) No information has come to our attention that causes us to
believe that the Registration Statement, including the documents
incorporated by reference therein (except the financial statements and
schedules and other financial and statistical data included therein,
as to which we express no view), at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) No information has come to our attention that causes us to
believe that the Prospectus, including the documents incorporated by
reference therein (except the financial statements and schedules and
other financial and statistical data included therein, as to which we
express no view), as of the date thereof or hereof, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
We confirm to you that (based solely upon a telephonic confirmation
from a representative of the Commission) that the Registration Statement is
effective under the Securities Act and, to the best of our knowledge, no stop
order with respect thereto has been issued, and no proceeding for that purpose
has been instituted or threatened by the Commission. To the best of our
knowledge, no order directed to any documents incorporated by reference in the
Registration Statement or the Prospectus has been issued by the Commission and
remains in effect, and no proceeding for that purpose has been instituted or
threatened by the Commission.
We are furnishing this letter to you, as Representatives of the
Underwriters, solely for the benefit of the Underwriters in their capacity as
such in connection with the offering of the Securities. This letter is not to be
relied on by or furnished to any other person or used, circulated, quoted or
otherwise referred to for any other purpose. We assume no obligation to advise
you, or to make any investigations, as to any legal developments or factual
matters arising subsequent to the date hereof that might affect the views
expressed herein.
Very truly yours,
CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
By
---------------------------------
, a Partner
EXHIBIT A-2
[FORM OF OPINION OF XXXXXXXX X. CAMERA]
December 19, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
I, Xxxxxxxx X. Camera, Senior Vice President, General Counsel and
Secretary of The Interpublic Group of Companies, Inc., a Delaware corporation
(the "Company"), have served as counsel for the Company in connection with the
Company's offering pursuant to a registration statement on Form S-3 (No.
33-109384) of 22,398,400 shares of its common stock, $0.10 par value per share
(the "Securities"). Such registration statement, as amended when it became
effective but excluding the documents incorporated by reference therein, is
herein called the "Registration Statement;" the related prospectus dated
November 20, 2003, as first filed with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 424(b)(2) under the Securities Act of 1933,
as amended (the "Securities Act"), but excluding the documents incorporated by
reference therein, is herein called the "Base Prospectus;" the prospectus
supplement dated December 16, 2003, as first filed with the Commission pursuant
to Rule 424(b)(5) under the Securities Act, but excluding the documents
incorporated by reference therein, is herein called the "Prospectus Supplement;"
and the Base Prospectus and the Prospectus Supplement together are herein called
the "Prospectus." This opinion letter is furnished to you pursuant to Section
5(b) of the Underwriting Agreement dated December 16, 2003 (the "Underwriting
Agreement") between the Company and the several underwriters named in Schedule I
thereto (the "Underwriters").
In arriving at the opinions expressed below, I have reviewed the
following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by reference
therein;
(c) the Prospectus and the documents incorporated by reference therein;
(d) a form of the Securities as executed by the Company; and
(e) the documents delivered to you by the Company at the closing pursuant to
the Underwriting Agreement, including copies of the Company's Restated
Certificate of Incorporation and By-Laws, each as amended through December
17, 2003 and July 31, 2003, respectively, certified by the Secretary of
State of the State of Delaware and the corporate secretary of the Company,
respectively.
In addition, I have reviewed the originals or copies certified or otherwise
identified to my satisfaction of all such corporate records of the Company and
such other instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and I have made such
investigations of law, as I have deemed appropriate as a basis for the opinions
expressed below.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified the accuracy as to factual matters of each
document I have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Underwriting Agreement).
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is my opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease its
property and to conduct its business as described in the Prospectus,
including the documents incorporated by reference, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
2. Each significant subsidiary, as defined in accordance with Regulation S-X
promulgated under the Securities Act, ("Subsidiary") of the Company has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own or lease its property and to conduct
its business as described in the Prospectus, including the documents
incorporated by reference, and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so incorporated
or qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
3. The authorized capital stock of the Company conforms as to legal matters to
the description thereof contained in the Prospectus.
4. The shares of Common Stock outstanding on the Closing Date have been duly
authorized and are validly issued, fully paid and non-assessable.
5. The Securities have been duly authorized and executed by the Company and,
when executed and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to preemptive
or other similar rights of any security holder of the Company.
6. The Underwriting Agreement has been duly authorized, executed and delivered
by, and is a valid and binding agreement of, the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles
of equity and except as rights to indemnification and contribution under
the Underwriting Agreement may be limited under applicable law.
7. The execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Underwriting Agreement, and the
consummation of the transactions or actions contemplated by the Prospectus
will not contravene any provision of applicable law or the Restated
Certificate of Incorporation or By-Laws, each as amended, of the Company
or, to the best of my knowledge, any agreement or other instrument binding
upon the Company or any of its Subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or, to the best of my knowledge,
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Subsidiary.
8. I do not know of any legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is a party or to
which any of the properties of the Company or any of its Subsidiaries is
subject other than proceedings fairly summarized in all material respects
in the Prospectus, including the documents incorporated by reference, and
proceedings which I believe are not likely to have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under the
Underwriting Agreement and to consummate the transactions contemplated by
the Prospectus.
Insofar as the foregoing opinions relate to the validity, binding
effect or enforceability of any agreement or obligation of the Company, (a) I
have assumed that each other party to such agreement or obligation has satisfied
those legal requirements that are applicable to it to the extent necessary to
make such agreement or obligation enforceable against it, and (b) such opinions
are subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity.
The foregoing opinions are limited to the federal law of the United
States of America and the law of the State of New York, and, where necessary,
the corporate laws of the State of Delaware.
I am furnishing this opinion letter to you, as Representatives, solely
for the benefit of the Underwriters in connection with the offering of the
Securities. This opinion letter is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
Xxxxxxxx X. Camera
EXHIBIT B
December 16, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This letter is being delivered to you in connection with a proposed
Underwriting Agreement (the "Underwriting Agreement") between The Interpublic
Group of Companies, Inc., a Delaware corporation (the "Company") and each of you
as representatives of a group of Underwriters named therein, whereby the
Underwriters have agreed to purchase up to 25,758,160 shares (the "Securities")
of the Company's common stock, $0.10 par value per share (the "Common Stock") of
the Company pursuant to the Underwriting Agreement.
In order to induce you and the other Underwriters to purchase the
Securities pursuant to the Underwriting Agreement, the undersigned will not,
without the prior written consent of UBS Securities LLC, Citigroup Global
Markets Inc. and X.X. Xxxxxx Securities, offer, sell, contract to sell, pledge
or otherwise dispose of, or file (or participate in the filing of) a
registration statement with the U.S. Securities and Exchange Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the U.S. Securities and Exchange Commission promulgated thereunder with respect
to, any shares of capital stock of the Company or any securities convertible or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of the Underwriting Agreement.
Notwithstanding the foregoing, the undersigned may offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction
that is designed to result in the disposition of) Common Stock or any securities
which are convertible into, exercisable, or exchangeable for Common Stock (i) as
a bona fide gift, (ii) to any trust, family partnership or similar entity for
the direct or indirect benefit of the undersigned, provided that trust,
partnership or similar entity agrees to be bound by the restrictions set forth
herein or (iii) to effect a cashless exercise of options to purchase Common
Stock that are outstanding on the date of this letter or hereafter granted under
the Company's existing stock incentive plans. The undersigned may also
participate in the filing of any registration statement that the Company is
permitted to file (or participate in the filing of) under Section 4(i) of the
Underwriting Agreement.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Very truly yours,
By:
------------------------
Name:
Title:
EXHIBIT C
Directors Subject To The Obligation To Deliver
A Lock-Up Letter In The Form Of Exhibit B
Xxxxx Xxxx
Xxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxxxxxx Xxxxxxxx
Xxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxx
H. Xxxx Xxxxxxxxx
Xxxxxxx X. Xxxx
J. Xxxxxxx Xxxxxx
