Exhibit 1.1
2,119,469 SHARES
FTI CONSULTING, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
______, 2002
XXXXXX BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
XXXXX, XXXXXXXX & XXXX, INC.
XXXXXX XXXXXXXXXX XXXXX LLC
SUNTRUST CAPITAL MARKETS, INC.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
FTI Consulting, Inc., a Maryland corporation (the "Company"), and certain
stockholders of the Company named in Schedule II hereto and identified therein
as the initial selling stockholders (the "Initial Selling Stockholders"),
propose to sell an aggregate of 2,119,469 shares (the "Firm Securities") of the
Company's common stock, par value $0.01 per share (the "Common Stock"). Of the
Firm Securities, 2,100,000 are being sold by the Company and 19,469 by the
Initial Selling Stockholders. In addition, certain members of the Company's
management identified on Schedule II hereto (the "Management Selling
Stockholders") propose to grant to the Underwriters named in Schedule I hereto
(the "Underwriters") an option to purchase up to an additional 317,920 shares of
the Common Stock on the terms and for the purposes set forth in Section 3 (the
"Option Securities"). The Initial Selling Stockholders and the Management
Selling Stockholders are hereinafter collectively referred to as the "Selling
Stockholders". The Firm Securities and the Option Securities, if purchased, are
hereinafter collectively called the "Securities". This is to confirm the
agreement concerning the purchase of the Securities from the Company and the
Selling Stockholders by the Underwriters, as of the date first written
above.
1. Representations, Warranties and Agreements of the Company. The Company
represents and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 setting forth information
with respect to the Company, the Selling Stockholders and the Securities
has (i) been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended, and the rules and regulations of
the Securities and Exchange Commission (the "Commission") thereunder
(collectively, the "Securities Act"), (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the Securities
Act. Copies of such registration statement (and any amendments thereto) and
all exhibits thereto have been delivered by the Company to you as the
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representatives of the Underwriters (the "Representatives"). As used in
this Agreement, "Effective Time" means the date and the time as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective Date"
means the date of the Effective Time; "Preliminary Prospectus" means each
preliminary prospectus contained in such registration statement, or
amendments thereof, before it became effective under the Securities Act and
any prospectus filed with the Commission by the Company with the consent of
the Representatives pursuant to Rule 424(a) of the Securities Act;
"Registration Statement" means such registration statement, as amended as
of the Effective Time, including any documents incorporated by reference
therein at such time and all information contained in the final prospectus
filed with the Commission pursuant to Rule 424(b) of the Securities Act and
deemed to be a part of the registration statement as of the Effective Time
pursuant to Rule 430A of the Securities Act; and "Prospectus" means the
prospectus in the form first used to confirm sales of the Securities. If
the Company has filed an abbreviated registration statement to register
additional Securities pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Reference made herein to any Preliminary Prospectus
or to the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any document filed under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the Prospectus,
as the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the Company filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order preventing
or suspending the use of the Registration Statement, the Preliminary
Prospectus or the Prospectus.
(b) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(c) The Registration Statement, as of the Effective Date, conformed in
all material respects with the requirements of the Securities Act and did
not contain any 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, and the Prospectus and any amendment or
supplement thereto, as of their respective dates and as of the applicable
Delivery Date (as defined in Section 5 below), conformed and will conform
in all material respects with the requirements of the Securities Act and
did not and do not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the
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circumstances under which they were made, not misleading; provided that,
the Company makes no representation or warranty as to information contained
in or omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the Company by
the Underwriters specifically for inclusion therein (which information is
set forth in Section 10(f)).
(d) The documents incorporated by reference in the Prospectus (the
"Incorporated Documents"), when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act and the Exchange Act, as applicable,
and none of such documents contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when
such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading.
(e) The Company and each of its subsidiaries has been duly formed and
is validly existing as a corporation or limited liability company in good
standing under the laws of its jurisdiction of formation, is duly qualified
to do business and is in good standing as a foreign corporation or limited
liability company in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification,
other than such jurisdictions where the failure to be so qualified or
otherwise authorized to transact business would not have a material adverse
effect on the business, prospects, financial condition, stockholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole (a "Material Adverse Effect"), and has all power and authority
necessary to own, lease or hold its properties and to conduct the
businesses in which it is engaged.
(f) The Company has an authorized and issued capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof contained in
the Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities, claims
or adverse interests (collectively, "Liens") of any nature except the Liens
under the Credit Facility dated as of August 30, 2002, among the Company,
the lenders and other parties named therein, as amended on September 20,
2002 (the "Credit Facility"). There has been no change in the authorized or
issued capitalization of the Company or any of its subsidiaries since the
date indicated in the Prospectus except with respect to (i) changes
occurring in the ordinary course of business, (ii) changes in outstanding
Common Stock
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resulting from transactions relating to employee benefit plans or dividend
reinvestment and employee stock purchase plans and (iii) changes described
in the Prospectus.
(g) Except as set forth in the Prospectus, the Company has not sold or
issued any shares of Common Stock during the six-month period preceding the
date of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act other than shares issued pursuant
to employee benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(h) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be set forth in the Prospectus under the rules and regulations of the
Commission which is not so set forth.
(i) Except as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is subject which, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(j) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned, directly or
indirectly, by such person, or to include any such securities in any
registration statement filed by the Company, except as have been exercised
or waived in connection with the offering of securities contemplated by
this Agreement.
(k) There are no contracts, agreements or other documents which are
required to be set forth in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act which have not been set forth
in the Prospectus or filed as exhibits to the Registration Statement.
(l) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject or
(iii) is in violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business, except, in the case of (ii)
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and (iii), such defaults, events, violations or failures which,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect.
(m) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree (a
"Material Loss"); and, since such date, there has not been any change in
the capital stock, short-term debt or long-term debt of the Company or any
of its subsidiaries (except as disclosed in the Prospectus) or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, consolidated
financial position, stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Change").
(n) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly the
financial condition, the results of operations and the changes in financial
position of the entities purported to be shown thereby on the basis stated
therein at the respective dates or for the respective periods indicated;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved; the supporting schedules, if any,
included or incorporated by reference in the Prospectus present fairly in
accordance with generally accepted accounting principles the information
required to be stated therein; and the other financial and statistical
information and data set forth in the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
have been prepared on a basis consistent with such financial statements and
the books and records of such entities.
(o) The pro forma financial statements of the Company and its
subsidiaries and the related notes thereto set forth in the Prospectus (and
any supplement or amendment thereto), if any, have been prepared on a basis
consistent with the historical financial statements of the Company and its
subsidiaries, give effect to the assumptions used in the preparation
thereof on a reasonable basis and in good faith and present fairly the
historical and proposed transactions contemplated by the Prospectus. Such
pro forma financial statements have been prepared in accordance with the
applicable requirements of Rule 11-02 of Regulation S-X promulgated by the
Commission. The other pro forma financial and statistical information and
data set forth in the Prospectus (and any supplement or amendment thereto)
are, in all material respects, accurately presented and prepared on a basis
consistent with the pro forma financial statements.
(p) Ernst & Young LLP, who have certified the financial statements of
the Company, whose report appears in the Prospectus and who have delivered
one of the initial letters referred to in Section 9(g) hereof, are
independent public accountants as required by the Securities Act; Deloitte
& Touche LLP, who have certified certain
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financial statements relating to the Business Recovery Services business
(the "BRS Business") acquired by the Company from PricewaterhouseCoopers
LLP, a Delaware limited liability partnership, pursuant to an Agreement for
the Purchase and Sale of Assets dated as of July 24, 2002, whose report
appears in the Prospectus and who have delivered one of the initial letters
referred to in Section 9(g) hereof, are independent public accountants as
required by the Securities Act; and both Ernst & Young and Deloitte &
Touche were independent accountants as required by the Securities Act
during the periods covered by the financial statements on which they
reported.
(q) The Company and its subsidiaries own no real property. The Company
and each of its subsidiaries have good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as do not materially affect the value
of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries
and except for Liens arising under the Credit Facility; and all material
assets held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its subsidiaries.
(r) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective
properties from insurers of recognized financial responsibility and as is
customary for companies engaged in similar businesses in similar
industries. Neither the Company nor any of its subsidiaries (i) has
received notice from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to be made in
order to continue such insurance or (ii) has any reason to believe that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers at a
cost that would not have a Material Adverse Effect.
(s) The Company and each of its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable environmental law, ordinance, rule,
regulation, order, judgment, decree or permit, as are necessary to own,
lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to
make any such filing or notice would not have a Material Adverse Effect.
Each such Authorization is valid and in full force and effect and the
Company and each of its subsidiaries is in compliance with all the terms
and conditions thereof and with the rules and regulations of the
governmental authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation,
the receipt of any notice from any governmental authority or governing
body) which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results
or, after notice
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or lapse of time or both, would result in any other impairment of the
rights of the holder of any such Authorization; and such Authorizations
contain no restrictions that are unduly burdensome to the Company or any of
its subsidiaries, except where such failure to be valid and in full force
and effect or to be in compliance, the occurrence of any such event or the
presence of any such restriction would not, individually or in the
aggregate, have a Material Adverse Effect.
(t) The Company and each of its subsidiaries own or possess adequate
rights to use all material patents, patent rights, patent applications,
trademarks, service marks, trade names, trademark registrations, service
xxxx registrations, copyrights, inventions, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary of
confidential information, systems or procedures) and licenses necessary for
the conduct of their respective businesses and have no reason to believe
that the conduct of their respective businesses will conflict with, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of asserted rights of others with respect to any of such
intellectual property which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(u) None of the Company and its subsidiaries is involved in any
strike, job action or labor dispute with any group of employees that might
be expected to have a Material Adverse Effect, and, to the Company's
knowledge, no such action or dispute is threatened.
(v) The Company and each of its subsidiaries is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (collectively, the "Internal Revenue
Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the
Internal Revenue Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause the
loss of such qualification.
(w) The Company and each of its subsidiaries has filed all federal,
state, local and foreign income and franchise tax returns required to be
filed through the date hereof and has paid all taxes (including withholding
taxes, penalties and interest, assessments, fees and other charges) due
thereon; and no tax deficiency has been determined adversely to the Company
or any of its subsidiaries which has had (nor does the Company have any
knowledge of any tax deficiency which, if determined adversely to the
Company or any of its subsidiaries, might have) a Material Adverse Effect.
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(x) Since the date as of which information is given in the Prospectus
through the date hereof, and except as described in the Prospectus, the
Company has not (i) issued or granted any securities, other than pursuant
to the Company's stock option and employee stock purchase plans, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business and which are not material, (iii) entered into any transaction not
in the ordinary course of business or (iv) declared or paid any dividend on
any of its capital stock.
(y) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded and reported to
the Company's management as necessary to permit preparation of its
financial statements in conformity with United States generally accepted
accounting principles and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(z) Neither the Company nor any of its subsidiaries, nor any director,
officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(aa) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
its subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in violation
of any applicable law, ordinance, rule, regulation, order, judgment, decree
or permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for
any violation or remedial action which would not have, or could not be
reasonably likely to have, a Material Adverse Effect; there has been no
material spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment surrounding
such property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company or any of
its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have a Material Adverse Effect; and the
terms "hazardous wastes", "toxic wastes", "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable
9
local, state, federal and foreign laws or regulations with respect to
environmental protection.
(bb) This Agreement has been duly authorized, executed and delivered
by the Company.
(cc) The Company has all necessary power and authority to issue and
deliver the Securities to be sold by the Company to the Underwriters
hereunder, such Securities have been duly authorized by the Company and
when such Securities are issued and delivered to and paid for by the
Underwriters pursuant to this Agreement on the applicable Delivery Date,
such Securities will be duly and validly issued, fully paid and
non-assessable; the Securities to be sold by the Selling Shareholders to
the Underwriters hereunder have been duly and validly issued and are fully
paid and non-assessable; and the Securities will conform, when issued, in
all material respects to the description thereof contained in the
Prospectus.
(dd) The execution, delivery and performance by the Company of this
Agreement, the issuance of the Securities to be sold by the Company to the
Underwriters hereunder, the compliance by the Company with all the
provisions hereof and the consummation of the transactions contemplated
hereby will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets, (iii) result in the
imposition or creation of (or the obligation to create or impose) a Lien
under any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective properties or assets is bound or (iv) result in the
suspension, termination or revocation of any Authorization of the Company
or any of its subsidiaries or any other impairment of the rights of the
holder of any such Authorization.
(ee) Except (i) with respect to the registration of the Securities
under the Securities Act, (ii) as required by applicable state securities
or "blue sky" and foreign laws, (iii) approval by the National Association
of Securities Dealers, Inc. and (iv) for such consents, approvals,
authorizations, orders, filings or registrations which have been obtained
or made, no consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets is required for the execution, delivery and
performance of this Agreement by the Company, the issuance of the
Securities to be sold by the Company and the consummation of the
transactions contemplated hereby.
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(ff) Neither the Company nor any subsidiary is or, as of the
applicable Delivery Date after giving effect to the issuance of the
Securities and the application of the net proceeds therefrom as set forth
in the Prospectus, will be an "investment company" as defined, and subject
to regulation, under the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Investment Company Act").
(gg) Neither the Company, nor to its knowledge, any of its Affiliates
(as defined in Rule 501(b) of Regulation D, an "Affiliate"), has taken,
directly or indirectly, any action (A) designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of the Securities to
facilitate the sale or resale of such securities or (B) prohibited by
Regulation M under the Securities Act.
(hh) All indebtedness of the Company that will be repaid with the
proceeds of the issuance and sale of the Securities was incurred for proper
purposes and in good faith and the Company was, at the time of the
incurrence of such indebtedness that will be repaid with the proceeds of
the issuance and sale of the Securities, and will be on the Delivery Date
(after giving effect to the application of the proceeds from the issuance
of the Securities) solvent, and had at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and sale
of the Securities and will have on the applicable Delivery Date (after
giving effect to the application of the proceeds from the issuance of the
Securities) sufficient capital for carrying on its business and was, at the
time of the incurrence of such indebtedness that will be repaid with the
proceeds of the issuance and sale of the Securities, and will be on the
applicable Delivery Date (after giving effect to the application of the
proceeds from the issuance of the Securities) able to pay its debts as they
mature.
Each certificate signed by any officer of the Company and delivered to the
Underwriters or counsel to the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
2. (a) Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, the Underwriters that:
(a) The Selling Stockholder has, and immediately prior to the
applicable Delivery Date (as defined in Section 5 below) the Selling
Stockholder will have, good and valid title to the Securities to be sold by
the Selling Stockholder hereunder on such date, free and clear of all
Liens; and upon delivery of such shares and payment therefor pursuant
hereto, good and valid title to such shares, free and clear of all Liens,
will pass to the several Underwriters.
(b) The Selling Stockholder has placed in custody under a custody
agreement (the "Custody Agreement") with American Stock Transfer & Trust
Company, as custodian (the "Custodian"), for delivery, in accordance with
the Custody Agreement, under this Agreement, certificates in negotiable
form (with signature guaranteed by a commercial bank or trust company
having an office or
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correspondent in the United States or a member firm of the New York or
American Stock Exchanges) representing the Securities to be sold by the
Selling Stockholder hereunder.
(c) The Selling Stockholder has duly and irrevocably executed and
delivered a power of attorney (the "Power of Attorney" and, together with
all other similar instruments executed by the other Selling Stockholders,
the "Powers of Attorney") appointing the persons named therein as
attorneys-in-fact, with full power of substitution, and with full authority
(exercisable by any one or more of them) to execute and deliver this
Agreement on such Selling Stockholder's behalf and to take such other
action as may be necessary or desirable to carry out the provisions hereof
on behalf of the Selling Stockholder, in accordance with the Custody
Agreement and the applicable Power of Attorney.
(d) The Selling Stockholder has all necessary right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement and the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by, or on behalf
of, the Selling Stockholder and the consummation by the Selling Stockholder
of the transactions contemplated hereby and thereby will not (A) conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, lease, pledge or other agreement or instrument to which the
Selling Stockholder is a party or by which the Selling Stockholder is bound
or to which any of the property or assets of the Selling Stockholder is
subject that could reasonably be expected to impair the Selling
Stockholder's ability to perform its obligations hereunder, or (B) result
in any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Selling
Stockholder or the property or assets of the Selling Stockholder.
(e) Except (i) with respect to the registration of the Securities
under the Securities Act, (ii) as required by applicable state securities
or "blue sky" laws and (iii) for such consents, approvals, authorizations,
orders, filings or registrations which have been obtained or made, no
consent, approval, authorization or order of, or filing or registration
with, any court or governmental agency or body having jurisdiction over the
Selling Stockholder or any of its properties or assets is required for the
execution, delivery and performance of this Agreement, the Power of
Attorney or the Custody Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions contemplated
hereby and thereby.
(f) The Registration Statement, as of the Effective Date, did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus and any amendment or supplement
thereto, as of their respective dates and as of the applicable Delivery
Date (as defined in Section 5 below) did not and do not contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; provided that the Selling Stockholder makes no
representation or warranty as to information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter specifically for inclusion therein (which
information is described in Section 10(f)); and provided further that this
paragraph (d) shall apply to
12
such Selling Stockholder only to the extent that the statements or
omissions from the Registration Statement or the Prospectus were based on
written information provided by such Selling Stockholder specifically for
inclusion therein (which information is described in Section 10(g)).
(g) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action (A) designed to or which has constituted or which
might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities or (B) prohibited by Regulation M under
the Securities Act.
(h) Each Selling Stockholder is not prompted to sell shares of Common
Stock by any material, non-public information concerning the Company that
is not set forth or incorporated by reference in the Registration Statement
and the Prospectus.
(b) Additional Representations, Warranties and Agreements of the
Management Selling Stockholders. Each Management Selling Stockholder has no
reason to believe that the representations and warranties of the Company
contained in Section 1 hereof are not materially true and correct, is familiar
with the Registration Statement and the Prospectus, as amended or supplemented,
and has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement, as of the Effective Date, or the
Prospectus, or any amendment or supplement thereto, as of their respective
dates, which has adversely affected or could reasonably be expected to adversely
affect the business of the Company in any material respect.
Each certificate signed by or on behalf of a Selling Stockholder and
delivered to the Underwriters or counsel to the Underwriters shall be deemed to
be a representation and warranty by such Selling Stockholder to the Underwriters
as to the matters covered thereby.
3. Purchase of the Securities by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell 2,100,000
shares of the Firm Securities and each Initial Selling Stockholder hereby agrees
to sell the number of shares of the Firm Securities set forth opposite its name
in Schedule II hereto, severally and not jointly, to the several Underwriters
and each of the Underwriters, severally and not jointly, agrees to purchase the
number of shares of the Firm Securities set forth opposite that Underwriter's
name in Schedule I hereto. Each Underwriter shall be obligated to purchase from
the Company, and from each Initial Selling Stockholder, that number of shares of
the Firm Securities which represents the same proportion of the number of shares
of the Firm Securities to be sold by the Company, and by each Initial Selling
Stockholder, as the number of shares of the Firm Securities set forth opposite
the name of such Underwriter in Schedule I represents of the total number of
shares of the Firm Securities to be purchased by all of the Underwriters
pursuant to this Agreement. The respective purchase obligations of the
Underwriters with respect to the Firm Securities shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Management Selling Stockholders, severally and not
jointly, grant to the Underwriters an option to purchase up to 317,920 shares of
Option Securities. Such option is granted for the purpose of covering
over-allotments in the sale of Firm Securities and is exercisable as provided in
Section 5 hereof. Shares of Option Securities shall be purchased severally for
the account of
13
the Underwriters in proportion to the number of shares of Firm Securities set
forth opposite the name of such Underwriters in Schedule I hereto. The
respective purchase obligations of each Underwriter with respect to the Option
Securities shall be adjusted by the Representatives so that no Underwriter shall
be obligated to purchase Option Securities other than in 100 share amounts.
The price of both the Firm Securities and any Option Securities shall be $
per share.
Neither the Company nor any Selling Stockholder shall be obligated to
deliver any of the Securities to be delivered on any Delivery Date (as defined
in Section 5 below), except upon payment for all the Securities to be purchased
on such Delivery Date as provided herein.
4. Offering of Securities by the Underwriters. Upon authorization by the
Representatives of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth
in the Prospectus.
5. Delivery of and Payment for the Securities. Delivery of and payment for
the Firm Securities shall be made at the offices of Xxxxx Xxxxxxx LLP, 0000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 at 10:00 a.m., New York City time, on
the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are referred to herein as
the "First Delivery Date." On the First Delivery Date, the Company and each
Initial Selling Stockholder shall deliver or cause to be delivered certificates
representing the Firm Securities to the Representatives or to the Custodian for
the account of each Underwriter against payment to or upon the order of the
Company and the Initial Selling Stockholders of the purchase price by wire
transfer in immediately available funds. Upon delivery, the Firm Securities
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Securities, the Company and each
Initial Selling Stockholder shall make the certificates representing the Firm
Securities available for inspection by the Representatives in New York, New
York, not later than 2:00 p.m., New York City time, on the business day prior to
the First Delivery Date.
The option granted in Section 3 will expire 30 days after the date of this
Agreement and may be exercised in whole or in part from time to time by written
notice being given to the Company and the Management Selling Stockholders by the
Representatives. Such notice shall set forth the aggregate number of shares of
Option Securities as to which the option is being exercised, the names in which
the shares of Option Securities are to be registered, the denominations in which
the shares of Option Securities are to be issued and the date and time, as
determined by the Representatives, when the shares of Option Securities are to
be delivered; provided, however, that this date and time shall not be earlier
than the First Delivery Date nor earlier than the second business day after the
date on which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised. The
date and time the shares of Option Securities are delivered are sometimes
referred to as an "Option Delivery Date" and the First Delivery Date and any
Option Delivery Date are sometimes each referred to as a "Delivery Date". In the
event the option to purchase Option
14
Securities is exercised in part only, the Underwriters will purchase Option
Securities from each Management Selling Stockholder, on a pro rata basis, in the
proportion that the number of Option Securities offered by such Management
Selling Stockholder bears to the aggregate number of Option Securities offered
by all Management Selling Stockholders.
Delivery of and payment for the Option Securities shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 a.m., New York City time, on such
Option Delivery Date. On such Option Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Securities to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Management Selling Stockholders of the purchase price by wire
transfer in immediately available funds. Upon delivery, the Option Securities
shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice. For the purpose
of expediting the checking and packaging of the certificates for the Option
Securities, the Management Selling Stockholders shall make the certificates
representing the Option Securities available for inspection by the
Representatives in New York, New York, not later than 2:00 p.m., New York City
time, on the business day prior to such Option Delivery Date.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than Commission's close of business on the
second business day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act; to make no further amendment or any supplement to
the Registration Statement or to the Prospectus prior to the last Delivery
Date except as permitted herein; to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or
15
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel
to the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (excluding exhibits), (ii) each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus and (iii) any documents incorporated by reference in the
Prospectus (excluding exhibits thereto); and, if the delivery of a
prospectus is required at any time after the Effective Time in connection
with the offering or sale of the Securities or any other securities
relating thereto and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act, to notify the Representatives and,
upon their request, to file such documents and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Representatives,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, or any document
incorporated by reference in the Prospectus, pursuant to Rule 424 of the
Securities Act, to furnish a copy thereof to the Representatives and
counsel to the Underwriters and obtain the consent of the Representatives
to the filing, such consent not to be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, to make generally
available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158 of the Securities
Act);
16
(g) Promptly from time to time, to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Securities;
provided that, in connection therewith, the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction in which the Company is not already so
qualified or has not so consented;
(h) For a period of two years following the First Delivery Date, to
furnish to the Underwriters copies of all written materials furnished by
the Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act; provided, however, that the Company shall not
be required to provide the Underwriters with any such reports or similar
forms that have been filed with the Commission by electronic transmission
pursuant to XXXXX;
(i) For a period of 90 days from the date hereof, not to, directly or
indirectly, (1) announce an offering of, or file any registration statement
with the Commission relating to, equity securities of the Company (other
than the offering contemplated by this Agreement) or offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition or
purchase by any person at any time in the future of) any shares of Common
Stock or securities convertible into or exchangeable for Common Stock
(other than the Securities and shares of Common Stock to be issued in the
ordinary course under the Company's employee benefit plans, stock option
plans, employee stock purchase plan or other employee compensation plans
existing on the date hereof or pursuant to currently outstanding options,
warrants or rights) or sell or grant options, warrants or rights with
respect to any shares of Common Stock, securities convertible into or
exchangeable for Common Stock or substantially similar securities (other
than the grant of options, warrants or rights pursuant to option or other
employee compensation plans existing on the date hereof), or (2) enter into
any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of
such shares of Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or
other securities, in cash or otherwise, without the prior written consent
of Xxxxxx Brothers Inc. on behalf of the Underwriters; and to cause each of
the persons specified on Schedule III hereto to furnish to the
Representatives, on or prior to the date hereof, a letter or letters,
substantially in the form of Annex A hereto;
(j) To cause the Securities to be approved by the New York Stock
Exchange ("NYSE") for listing prior to the First Delivery Date;
(k) Not to take, directly or indirectly, any action which is designed
to stabilize or manipulate, or which constitutes or which might reasonably
be expected to
17
cause or result in stabilization or manipulation, of the price of any
security of the Company in connection with the offering of the Securities;
(l) To apply the net proceeds from the issuance and sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither
the Company nor any of its subsidiaries shall become an "investment
company" as defined, and subject to regulation, under the Investment
Company Act.
7. Further Agreements of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, agrees:
(a) For a period of 90 days from the date hereof, not to, directly or
indirectly, other than pursuant to this Agreement, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any shares of
Common Stock or securities convertible into or exchangeable for Common
Stock (other than the Securities) or substantially similar securities or
sell or grant options, warrants or rights with respect to any shares of
Common Stock, securities convertible into or exchangeable for Common Stock
or substantially similar securities, or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is
to be settled by delivery of Common Stock or other securities, in cash or
otherwise, in each case without the prior written consent of Xxxxxx
Brothers Inc.;
(b) That the Securities to be sold by the Selling Stockholder
hereunder, which is represented by the certificates held in custody for the
Selling Stockholder, is subject to the interest of the Underwriters and the
other Selling Stockholders thereunder, that the arrangements made by the
Selling Stockholder for such custody are to that extent irrevocable, and
that the obligations of the Selling Stockholder hereunder shall not be
terminated by any act of the Selling Stockholder, by operation of law, by
the death or incapacity of any individual Selling Stockholder or, in the
case of a trust, by the death or incapacity of any executor or trustee or
the termination of such trust, or the occurrence of any other event, except
as may be provided herein;
(c) To deliver to the Representatives prior to the First Delivery Date
a properly completed and executed United States Treasury Department Form
W-8 (if the Selling Stockholder is a non-United States person) or Form W-9
(if the Selling Stockholder is a United States person); and
(d) To cooperate with the Company and the Underwriters and to execute
and deliver, or use its best efforts to cause to be executed and delivered,
all such other instruments, and take all such other actions as such party
may reasonably be requested to take by the Company and the Underwriters
from time to time, in order to effectuate the sale of the Securities in the
offering contemplated hereby.
18
8. Expenses. The Company agrees to pay the following expenses, whether or
not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated:
(a) the costs incident to the authorization, issuance, sale and
delivery of the Securities and any taxes payable in that connection;
(b) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Prospectus and any
amendments and exhibits thereto;
(c) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereto
(including, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement;
(d) the costs of producing and distributing this Agreement;
(e) the cost of delivering and distributing the Custody Agreement and
the Powers of Attorney;
(f) the filing fees incident to securing the review by the NYSE and
the National Association of Securities Dealers, Inc. of the terms of sale
of the Securities and any applicable listing or other fees;
(g) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 6(g)
and of preparing, printing and distributing a Canadian wrapper (including
related fees and expenses of counsel to the Underwriters);
(h) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with
the road show; and
(i) all other costs and expenses incident to the performance of the
obligations of the Company and Selling Stockholders under this Agreement
provided that, except as provided in this Section 8 and in Section 13 the
Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel, and the Selling Stockholders shall pay the fees and
expenses of their counsel and their attorneys-in-fact and any transfer taxes
payable in connection with their respective sales of Stock to the Underwriters
and
19
reimburse the Company for their pro rata share of the fees and expenses paid by
the Company in connection with the offering of the Stock, unless any such
Selling Stockholder shall have agreed otherwise with the Company in which case
the Company shall pay such Selling Shareholder's fees and expenses.
9. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company and the
Selling Stockholders contained herein, to the performance by the Company and the
Selling Stockholders of their respective obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a); no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
prior to or on such Delivery Date that the Registration Statement, the
Prospectus or any amendment or supplement thereto, in the opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Underwriters, contains any
untrue statement of any material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Custody Agreement,
the Powers of Attorney, the Registration Statement, the Prospectus, the
Securities, and all other legal matters relating to the offering, issuance
and sale of the Securities and the transactions contemplated hereby and
thereby shall be reasonably satisfactory in all material respects to
counsel to the Underwriters; and the Company and the Selling Stockholders
shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(d) Xxxxx Xxxxxxx LLP shall have furnished to the Representatives its
written opinion, as counsel to the Company, addressed to the Underwriters
and dated such Delivery Date, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) The Company and each of its subsidiaries have been duly
formed and are validly existing as corporations or limited liability
companies in good standing under the laws of their respective
jurisdictions of formation, are duly qualified to do business and are
in good standing as foreign corporations in each jurisdiction in which
their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification (other than
such jurisdictions where the failure to be so qualified or otherwise
authorized to transact business would not reasonably be expected to
have a Material Adverse
20
Effect) and have all corporate power and authority necessary to own or
hold their respective properties and conduct the businesses in which
they are engaged.
(ii) The Company has an authorized and issued capitalization as
set forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the Securities being delivered on such
Delivery Date) have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid, non-assessable and are owned
directly or indirectly by the Company, free and clear of all Liens
other than those arising pursuant to the Credit Facility.
(iii) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of, any
Securities pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel.
(iv) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Securities Act specified in such opinion on the
date specified therein; and no stop order suspending the effectiveness
of the Registration Statement has been issued and, to the knowledge of
such counsel, no proceeding for that purpose is pending or threatened
by the Commission.
(v) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company prior to such
Delivery Date, the Incorporated Documents and any further amendment or
supplement to any such incorporated document made by the Company prior
to such Delivery Date (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Securities Act and the Exchange Act, as
applicable.
(vi) To such counsel's knowledge, there are no contracts or other
documents which are required to be set forth in the Prospectus or
filed as exhibits to the Registration Statement by the Securities Act
which have not been set forth or filed as exhibits to the Registration
Statement or incorporated therein by reference.
(vii) The Company has all necessary corporate right, power and
authority to execute and deliver this Agreement and to perform its
obligations thereunder and to issue, sell and deliver the Securities
to the Underwriters.
21
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The Securities have been duly authorized by the Company and
when the Securities are issued and delivered to and paid for by the
Underwriters pursuant to this Agreement on the applicable Delivery
Date, such Securities will be duly and validly issued, fully paid and
non-assessable; the Securities will conform, when issued, in all
material respects to the description thereof contained in the
Prospectus.
(x) The statements made in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
summaries of the terms of the Company's capital stock, constitute
accurate summaries of the terms of such capital stock in all material
respects.
(xi) The statements made in the Prospectus under the caption
"Description of Capital Stock - General, - Common Stock and -
Anti-Takeover Provisions of the Maryland General Corporation Law",
insofar as they purport to constitute summaries of the terms of the
Company's charter or bylaws, the Maryland General Corporation Law,
rules and regulations thereunder or contracts and other documents,
constitute accurate summaries of the terms of such statutes, rules and
regulations or contracts and other documents in all material respects.
(xii) The statements made in the Prospectus under the caption
"Certain United States Tax Considerations to Non-U.S. Holders" to
Non-U.S. Holders, insofar as they purport to constitute summaries of
matters of United States federal income tax law and regulations or
legal conclusions with respect thereto, constitute accurate summaries
of the matters set forth therein in all material respects.
(xiii) The execution, delivery and performance by the Company of
the this Agreement, the issuance of the Securities to be sold by the
Company, the compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will not
(A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the material property or
assets of the Company or any of its subsidiaries is subject or (B)
result in any violation of the provisions of the charter or by-laws of
the Company or any of its subsidiaries or any statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets.
(xiv) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) to such counsel's knowledge
is in default in any
22
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject or (iii)
is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business.
(xv) No consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets is required for the execution, delivery and
performance of the Agreement or any of the other documents to be
entered into in connection with the issuance of the Securities by the
Company and the consummation of the transactions contemplated hereby
and thereby, except (A) for the registration of the Securities under
the Securities Act, (B) such consents, approvals, authorizations,
registrations or qualifications as may be required under applicable
state securities laws in connection with the purchase and distribution
of the Securities by the Underwriters and (C) for such consents,
approvals, authorizations, orders, filings or registrations as have
been obtained or made.
(xvi) To the knowledge of such counsel, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the Securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act, except for such rights as have
been exercised or waived in connection with the offering and sale of
the Securities.
(xvii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company, might have a Material Adverse
Effect.
(xviii) The Company is not, and assuming the application of the
net proceeds from the sale of the Securities as set forth in the
Prospectus, will not be, an "investment company" as defined, and
subject to regulation, under the Investment Company Act.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the federal laws of the United States of America
and the laws of the
23
State of Maryland. In rendering such opinion, such counsel may rely upon a
certificate of the Company in respect of matters of fact, provided that such
counsel shall furnish a copy thereof to the Representatives and state that it
believes that both the Underwriters and it are justified in relying upon such
certificate. Such opinion shall also include a statement to the effect that (x)
such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement, such counsel participated in
conferences with officers and other representatives of the Company, the
Company's independent accountants and the Underwriters and their counsel, at
which the contents of the Registration Statement were discussed, and (y) based
on the foregoing, no facts have come to the attention of such counsel which lead
such counsel to believe that (I) the Registration Statement (except for the
financial statements and financial and statistical data included or incorporated
by reference therein, as to which such counsel need express no belief), as of
the Effective Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus (except as
stated above), as of its date and the applicable Delivery Date, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading or (II) any documents incorporated by reference in the
Prospectus, when they were filed with the Commission contained an untrue
statement of a material fact or omitted 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. The opinion of Xxxxx Xxxxxxx LLP described in
this Section 9(d) shall be rendered to the Representatives at the request of the
Company and shall so state therein.
(e) The respective counsel for each of the Selling Stockholders set
forth on Schedule II hereto each shall have furnished to the
Representatives their written opinion, as counsel to each of the Selling
Stockholders for whom they are acting as counsel, addressed to the
Underwriters in form and substance reasonably satisfactory to the
Representatives dated such Delivery Date, to the effect that:
(i) Immediately prior to the time of delivery of the Securities
to the Underwriters, the Selling Stockholder is the sole registered
owner of the Securities to be sold by it, has all necessary power and
authority to such Securities and, upon payment for and delivery of
such Securities in accordance with this Agreement, the Underwriters
will acquire all of the rights of the Selling Stockholder in such
Securities and will also acquire their interest in such Securities
free of any adverse claim;
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder;
(iii) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by the Selling Stockholder and constitute valid
and binding agreements of such Selling Stockholder in accordance with
their terms;
24
(iv) The execution, delivery and performance by the Selling
Stockholder of the this Agreement, the Power of Attorney and the
Custody Agreement, the compliance by the Selling Stockholder with all
the provisions hereof and thereof and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby will
not (A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property or assets
of the Selling Stockholder is subject that could reasonably be
expected to impair the Selling Stockholder's ability to perform its
obligations hereunder or (B) result in any violation of any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Selling
Stockholder or any of its properties or assets; and
(v) No consent, approval, authorization or order of, or filing or
registration with, or qualification of or with, any governmental
agency or body or any court or agency acting pursuant to any statute
or law is required for the issue and sale of the Securities by the
Selling Stockholder and the compliance by the Selling Stockholder with
all of the provisions of this Agreement, except for (A) the
registration of the Securities under the Securities Act (B) such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state
securities or blue sky laws in connection with the purchase and
distribution of the Securities by the Underwriters and (C) for such
consents, approvals, authorizations, orders, filings or registrations
as have been obtained or made.
In rendering the opinions in Section 9(e)(i) above, counsel to each Selling
Stockholder may rely upon a certificate of such Selling Stockholder in respect
of matters of fact as to ownership of and the absence of adverse claims
regarding the Securities sold by such Selling Stockholder. The opinion of
counsel to each Selling Stockholder described in this Section 9(e) shall be
rendered to the Representatives at the request of such Selling Stockholder and
shall so state therein.
(f) Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to the
Underwriters its written opinion, as counsel to the Underwriters, addressed
to the Underwriters and dated such Delivery Date, in form and substance
reasonably satisfactory to the Underwriters. In rendering such opinion, as
to matters of Maryland law, Xxxxxxx Xxxxxxx & Xxxxxxxx shall be entitled to
rely on the opinion of Xxxxx Xxxxxxx LLP described in Section 9(d) above.
(g) At the time of execution of this Agreement, the Representatives
shall have received from each of (i) Ernst & Young and (ii) Deloitte &
Touche LLP (collectively, the "Accountants") a letter or letters, in form
and substance reasonably satisfactory to the Representatives, addressed to
the Underwriters and dated the date
25
hereof (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the
financial information (including without limitation pro forma financial
information) and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public offerings.
(h) With respect to the letters of the Accountants referred to in the
preceding paragraph and delivered to the Representatives concurrently with
the execution of this Agreement (each an "initial comfort letter"), the
Company shall have furnished to the Representatives a letter (each a
"bring-down comfort letter") of each of such Accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by the initial
letters and (iii) confirming in all material respects the conclusions and
findings set forth in the initial comfort letters.
(i) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its chief executive officer and
its chief financial officer, in form and substance reasonably satisfactory
to the Underwriters, stating that:
(i) the representations, warranties and agreements of the Company
in Section 1 of this Agreement are true and correct as of such
Delivery Date; and the Company has complied in all material respects
with all its agreements contained herein to be performed prior to or
on such Delivery Date; and the conditions set forth in Sections 9(a)
and 9(k) have been fulfilled;
(ii) since the respective dates as of which information is given
in the Prospectus, other than as set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement filed in accordance with the terms of this
Agreement), (A) there has not occurred any change or any development
that could reasonably be expected to have a Material Adverse Effect,
(B) there has not been any change in the capital stock, the short-term
debt, or the long-term debt of the Company or any of its subsidiaries
that could reasonably be expected to have a Material Adverse Effect,
(C) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent, (D) a Material
Loss has not occurred, (E) the Company has not declared or paid any
dividend on its capital stock, except
26
for dividends declared in the ordinary course of business and
consistent with past practice, and (F) except as set forth in the
Prospectus, neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or not in the
ordinary course of business) material to the Company and its
subsidiaries taken as a whole; and
(iii) they have carefully examined the Registration Statement and
the Prospectus and, in their opinion, (A) the Registration Statement,
as of the Effective Date, conformed in all material respects with the
requirements of the Securities Act and did not contain any 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, (B) the Prospectus, as of its date and as of the
applicable Delivery Date, conformed and conforms in all material
respects with the requirements of the Securities Act and did not and
does not contain any untrue statement of a material fact and did not
and does not omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (C) since
the Effective Date no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statement or
the Prospectus.
(j) Each Initial Selling Stockholder (or one or more attorneys-in-fact
on behalf of such Initial Selling Stockholder) shall have furnished to the
Representatives on the Initial Delivery Date, and each Management Selling
Stockholder (or one or more attorneys-in-fact on behalf of such Management
Selling Stockholder) shall have furnished to the Representatives on the
relevant Option Delivery Date, a certificate, dated such Delivery Date,
signed by, or on behalf of, such Selling Stockholder stating that the
representations, warranties and agreements of such Selling Stockholder
contained herein are true and correct as of such Delivery Date and that
such Selling Stockholder has complied in all material respects with all
agreements contained herein to be performed by such Selling Stockholder at
or prior to such Delivery Date.
(k) The NYSE shall have approved the Securities for listing, subject
only to official notice of issuance.
(l) The Representatives shall have received from each of the persons
specified on Schedule III hereto an executed lock-up letter agreement
contemplated by Section 6(i) hereof.
(m) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus (A) any Material Loss, otherwise than as
described or contemplated in the Prospectus, or (B) since such date there
shall not have been any change in the capital stock, short-term debt or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, prospects, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than
as described or contemplated in the Prospectus, the effect of which, in any
such case described in clause (A) or (B), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
27
Securities being delivered on the applicable Delivery Date on the terms and
in the manner contemplated in the Prospectus and this Agreement.
(n) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
the NASDAQ or in the over-the-counter market, or trading in any securities
of the Company on any exchange or in the over-the-counter market, shall
have been suspended or the settlement of such trading generally shall have
been materially disrupted or minimum prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or state
authorities of the United States, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in hostilities
involving the United States, there shall have been a declaration of a
national emergency or war by the United States or there shall have occurred
any other substantial, national or international, calamity or crisis (iv)
there shall have occurred such a material adverse change in general
domestic or international economic, political or financial conditions,
including without limitation as a result of terrorist activities, or the
effect of international conditions on the financial markets in the United
States shall be such, as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Securities being delivered on such Delivery
Date on the terms and in the manner contemplated in the Prospectus.
The Company and the Selling Stockholders shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request to evidence compliance with the
conditions set forth in this Section 9. All opinions, letters, evidence and
certificates mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in form and
substance reasonably satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) (i) The Company shall indemnify and hold harmless each
Underwriter, its respective directors, officers and employees and each
person, if any, who controls any Underwriter within the meaning of the
Securities Act, and each Selling Stockholder from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the
Securities), to which that Underwriter, director, officer, employee or
controlling person or Selling Stockholder may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
any (A) Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, (B) any blue sky
application or other document prepared or executed by the Company (or
based upon any written information furnished by the Company for such
purpose) filed in any jurisdiction specifically for the purpose of
qualifying any or all of the Securities
28
under the securities laws of any state or other jurisdiction (such
application, document or information being hereinafter called a "Blue
Sky Application"), or (C) in any materials or information provided to
investors by, or with the approval of, the Company in connection with
the marketing of the offering of the Securities ("Marketing
Materials"), including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically), (ii)
the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement, the Prospectus, or in any
amendment or supplement thereto, in any Blue Sky Application or in any
Marketing Materials any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any
Underwriter or Selling Stockholder in connection with, or relating in
any manner to, the Securities or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that, the Company shall
not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly
from any such acts or failures to act undertaken or omitted to be
taken by such Underwriter or such Selling Stockholder through its
gross negligence or willful misconduct), and shall reimburse each
Underwriter, each such director, officer, employee or controlling
person and each Selling Stockholder promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, director,
officer, employee or controlling person or Selling Stockholder in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not
be liable to any Underwriter in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with the written
information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information consists solely
of the information specified in Section 10(f); provided, further, that
the Company shall not be liable in any such case to a Selling
Stockholder to the extent that any such loss, claim, damage, liability
or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus,
or in any such amendment or supplement, in reliance upon and in
conformity with the written information furnished to the Company by
such Selling Stockholder specifically for inclusion therein, which
information consists solely of the information specified in Section
10(g). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter, any
director, officer, employee or controlling person of any Underwriter
or any Selling Stockholder.
(ii) The Management Selling Stockholders severally agree to be
responsible for any amounts payable by the Company under Section
10(a)(i) to the Underwriters, their directors, officers, employees and
control persons, in the event that (x) the Company is bankrupt or
insolvent or (y) any Underwriter, its directors, officers,
29
employees or controlling persons shall have made a demand upon the
Company for payment of amounts payable to such Underwriter, its
directors, officers, employees or controlling persons under Section
10(a)(i) (including reimbursement of legal fees or other expenses),
such amounts are not being contested by the Company in good faith, and
such demand remains unsatisfied for 60 days or more; provided,
however, that the liability of each Management Selling Stockholder
under this Section 10(a)(ii) shall be limited to an amount equal to
the aggregate purchase price, less underwriting discounts and
commissions, received by such Management Selling Stockholder from the
sale of Option Securities hereunder by such Management Selling
Stockholder.
(b) Each of the Selling Stockholders, severally in proportion to the
number of shares of Securities to be sold by each of them hereunder, shall
indemnify and hold harmless each Underwriter, its directors, officers and
employees, and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action relating
to purchases and sales of the Securities), to which that Underwriter,
director, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any amendment or supplement thereto, any material
fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company by such Selling Stockholder specifically for inclusion
therein, which information is limited to the information set forth in
Section 10(g), and shall reimburse each Underwriter and any such director,
officer, employee or controlling person for any legal or other expenses
reasonably incurred by such Underwriter or any such director, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Selling Stockholders shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any such amendment or supplement, in
reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information consists solely of the information specified in Section 10(f).
Notwithstanding any other provisions of this Agreement, the liability of
each Selling Stockholder pursuant to the provisions of this Section 10
shall be limited to an amount equal to the aggregate purchase price, less
underwriting discounts and commissions, received by such Selling
Stockholder from the sale of Securities hereunder by such Selling
Stockholder. The foregoing indemnity agreement is in addition to any
30
liability that the Selling Stockholders may otherwise have to any
Underwriter or to any director, officer, employee or controlling person of
that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each Selling Stockholder, each of their
respective directors, officers and employees, and each person, if any, who
controls the Company or such Selling Stockholder within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company,
such Selling Stockholder or any such director, officer, employee or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any amendment or supplement thereto or in any Blue
Sky Application, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with the written information concerning such Underwriter furnished to the
Company and the Selling Stockholders through the Representatives by or on
behalf of that Underwriter specifically for inclusion therein and set forth
in Section 10(f), and shall reimburse the Company, each Selling Stockholder
and any such director, officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by the
Company or such Selling Stockholder or any such director, officer, employee
or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to
the Company, any Selling Stockholder or any such director, officer,
employee or controlling person.
(d) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 10 except to the extent it has been materially prejudiced by such
failure; and provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 10. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the
31
indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Representatives shall have the right to employ separate
counsel to represent jointly the Representatives and those other
Underwriters and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company or
any Selling Stockholder under this Section 10 if, in the reasonable
judgment of the Representatives, it is advisable for the Representatives
and such Underwriters, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company. No
indemnifying party shall, (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
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, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 10(a), 10(b) or 10(c) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other with respect
to the statements or omissions which resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Securities purchased
under this Agreement (before deducting expenses) received by the Company
and the Selling Stockholders, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, on the other hand, bear to the
total gross proceeds from the offering of the Securities under this
Agreement, as set forth
32
in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each Selling Stockholder
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 10(e) were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section
shall be deemed to include, for purposes of this Section 10(e), any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10(e), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 10(e)
are several in proportion to their respective underwriting obligations and
not joint.
(f) The Underwriters severally confirm, and the Company and each
Selling Stockholder each acknowledges, that the statements with respect to
the delivery of the Securities by the Underwriters in connection with the
public offering of the Securities set forth on the cover page of the
Prospectus, and the concession and reallowance figures and the information
concerning overallotment transactions, stabilization, short positions and
penalty bids and electronic distribution appearing under the caption
"Underwriting" in the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the
Company through the Representatives by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the
Prospectus.
(g) Each of the Selling Stockholders severally confirms and each of
the Underwriters acknowledges that the information set forth under the
caption "Principal and Selling Stockholders" in the Prospectus regarding
such Selling Stockholder are correct and constitute the only information
concerning such Selling Stockholder furnished in writing to the Company by
or on behalf of such Selling Stockholder specifically for inclusion in the
Registration Statement and the Prospectus.
11. Defaulting Underwriters. If, on any Delivery Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated to purchase the
Securities which the defaulting
33
Underwriter agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of Firm Securities set forth opposite
the name of each remaining non-defaulting Underwriter in Schedule 1 hereto bears
to the number of Firm Securities set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the Securities on such Delivery Date if the aggregate number of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the aggregate number of the Securities to
be purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the aggregate number of
Securities which it agreed to purchase on such Delivery Date pursuant to the
terms of Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, the total
number of Securities to be purchased on such Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase on such Delivery Date the number of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date, this Agreement (or, with respect to the Option Delivery Date, the
obligation of the Underwriters to purchase, and of the Management Selling
Stockholders to sell, the Option Securities) shall terminate without liability
on the part of any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses to the extent set
forth in Sections 8 and 13. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule I hereto who, pursuant to this
Section 11, purchases which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Selling Stockholders for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
to the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
12. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
prior to delivery of and payment for the Firm Securities if, prior to that time,
any of the events described in Sections 9(m) or 9(n) shall have occurred or if
the Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If (a) the Company or any
Selling Stockholder fails to tender the Securities for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or any Selling Stockholder to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company or the Selling Stockholders is
not fulfilled or (b) the Underwriters decline to purchase the Securities for any
reason permitted under this Agreement (including the termination of this
Agreement pursuant to Section 12), the
34
Company shall reimburse the Underwriters for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the
Securities, and upon demand the Company shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Section 11 by
reason of the default of one or more Underwriters, neither the Company nor the
Selling Stockholders shall be obligated to reimburse any defaulting Underwriter
on account of those expenses.
14. Notices, Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Xxxxxx Brothers Inc., 1285 Avenue of the
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Registration Department (Fax: (000) 000-0000), with a copy, in the case of
any notice pursuant to Section 10(d), to the Director of Litigation, Office
of the General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000; and
with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000 Attention: Xxxxx Xxxxxxx, Esq. (Fax: (000) 000-0000;
Telephone: (000) 000-0000);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Xxxx X. Xxxx (Fax: (000) 000-0000); and
with a copy to Xxxxx Xxxxxxx LLP, 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxxxx, Xx. (Fax: (000) 000-0000); Telephone
(000) 000-0000);
(c) if to any Selling Stockholder, shall be delivered or sent by mail,
telex or facsimile transmission to such Selling Stockholder at the address
set forth on Schedule II hereto, with a copy to the counsel, if any, to
such Selling Stockholder listed on such schedule;
provided, however, that any notice to an Underwriter pursuant to Section 10(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and the
Selling Stockholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. on behalf of the Representatives and the Company and the
Underwriters shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on behalf of the Selling Stockholders by either
Xxxxxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxx, as attorneys-in-fact.
35
15. Persons Entitled to Benefit of Agreement. This Agreement will inure to
the benefit of and be binding upon the Underwriters, the Company, the Selling
Stockholders and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
and the Selling Stockholders contained in this Agreement will also be deemed to
be for the benefit of the directors, officers and employees of the Underwriters
and the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (B) any indemnity agreement of
the Underwriters contained in Section 10(c) of this Agreement will be deemed to
be for the benefit of (i) directors, officers and employees of the Company and
any person controlling the Company within the meaning of Section 15 of the
Securities Act and (ii) directors, officers and employees of any Selling
Stockholder and any person controlling such Selling Stockholder within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 15, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations, warranties and
agreements of the Company, the Selling Stockholders and the Underwriters
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, will survive the delivery of and payment for the
Securities and will remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any of them or any person controlling any of them.
17. Definition of the Term "Business Day". For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
19. Consent to Jurisdiction; Forum Selection; Waiver of Jury Trial.
(a) Each of the Underwriters, the Company and each Selling Stockholder
hereby submits to the jurisdiction of the courts of the State of New York
and the courts of the United States of America located in the State of New
York over any suit, action or proceeding with respect to this Agreement or
the transactions contemplated hereby.
(b) Any suit, action or proceeding with respect to this Agreement or
the transactions contemplated hereby may be brought only in the courts of
the State of New York or the courts of the United States of America located
in the State of New York, located in the Borough of Manhattan, City of New
York, State of New York. Each of the parties hereto waives any objection
that it may have to the venue of such suit, action or proceeding in any
such court or that such suit, action or proceeding in such court was
brought in an inconvenient court and agrees not to plead or claim the same.
36
(c) Any right to trial by jury with respect to any lawsuit, claim,
action or other proceeding arising out of or relating to this Agreement or
is expressly and irrevocably waived.
20. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
21. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature page follows]
37
If the foregoing correctly sets forth the agreement between the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
FTI CONSULTING, INC.
By _____________________________
Name:
Title:
THE INITIAL SELLING STOCKHOLDERS SET
FORTH IN SCHEDULE II HERETO
By _____________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
By _____________________________
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
_____________________________
Xxxx X. Xxxx, XX
_____________________________
Xxxxxxx X. Xxxx
_____________________________
Xxxxxxxx X. Xxxxxx
38
Accepted:
XXXXXX BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
XXXXX, XXXXXXXX & XXXX, INC.
XXXXXX XXXXXXXXXX XXXXX LLC
SUNTRUST CAPITAL MARKETS, INC.
By XXXXXX BROTHERS INC.
By: ___________________________
Authorized Representative
SCHEDULE I
Number of Firm
Securities to be
Underwriters Purchased
------------ ----------
----------
Xxxxxx Brothers Inc. ...........................................----------
Banc of America Securities LLC ................................ ----------
Xxxxx, Xxxxxxxx & Xxxx, Inc. ...................................----------
Xxxxxx Xxxxxxxxxx Xxxxx LLC ....................................----------
SunTrust Capital Markets, Inc. .................................----------
Total ................................................ 2,119,469
==========
SCHEDULE II
Option Securities to be
Firm Securities Sold if Option is
Name and Address of Selling Stockholder to be Sold exercised
--------------------------------------- --------------- ---------
Initial Selling Stockholders
Xxxxxx Xxxxxx(a) 15,969 --
Xxxxx Xxxxx (a) 3,500 --
Management Selling Stockholders
Xxxx X. Xxxx, XX(b) __ 150,000
Xxxxxxx X. Xxxx(b) __ 137,920
Xxxxxxxx X. Xxxxxx(b) __ 30,000
---------------------------------------------------------------------------------------
Total 19,469 317,920
(a) This Selling Stockholder is represented by Xxxxx Xxxxxxx LLP, 0000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Xx.
(Fax: (000) 000-0000; Telephone (000) 000-0000), and has appointed Xxxxxxxx
X. Xxxxxx and Xxxxxx X. Xxxxxx, and each of them, as Attorneys-in-Fact for
such Selling Stockholder. The address of this Selling Stockholder is 000
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000.
(b) This Selling Stockholder is represented by Paul, Hastings, Xxxxxxxx &
Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Xxxxx (Fax: (000) 000-0000; Telephone (000) 000-0000). The
address of this Selling Stockholder is 000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000.
SCHEDULE III
Lock-Up Letter Agreements to be provided by:
--------------------------------------------
Xxxx X. Xxxx, XX
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx, Xx.
Xxxxx X. X'Xxxxxx
Xxxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxx
ANNEX A
LOCK-UP LETTER AGREEMENT
Xxxxxx Brothers Inc.
on behalf of the several Underwriters (as defined below)
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
The undersigned understands that you and certain other firms propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") providing
for the purchase by you and such other firms (the "Underwriters") of shares (the
"Shares") of Common Stock, par value $0.01 per share (the "Common Stock"), of
FTI Consulting, Inc. a Maryland corporation (the "Company"), and that the
Underwriters propose to reoffer the Shares to the public pursuant to the
Underwriting Agreement (the "Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc., on behalf of the Underwriters, the undersigned will not, directly
or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the future of) any
shares of Common Stock or any securities convertible into or exchangeable for
Common Stock (other than any of the Shares) or substantially similar securities
or sell or grant options, warrants or rights with respect to any shares of
Common Stock, securities convertible into or exchangeable for Common Stock or
substantially similar securities, or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or other securities, in cash or otherwise,
for a period of 90 days after the date of the final prospectus relating to the
Offering.
In furtherance of the foregoing, the Company and its transfer agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Lock-Up Letter Agreement. Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions. Any Offering will only be made pursuant to the Underwriting
Agreement, the terms of which are subject to negotiation between the Company,
the Underwriters and the Selling Stockholders named therein. In addition, it is
understood that, if the Company notifies you that it does not intend to proceed
with the Offering, if the Underwriting Agreement is not executed or if the
Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated
prior to payment for and delivery of the Securities, the undersigned will be
released from its obligations under this Lock-Up Letter Agreement.
This Agreement shall be governed by, and construed in accordance with, the
laws of New York.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
This Lock-Up Letter Agreement does not constitute an offer of any
securities for sale. No offer to buy the securities can be accepted and no part
of the purchase price can be received until the registration statement to be
filed by FTI Consulting, Inc. with the Securities and Exchange Commission has
become effective, and any such offer may be withdrawn or revoked, without
obligation or commitment of any kind, at any time prior to notice of its
acceptance given after the effective date. An indication of interest in response
to this Lock-Up Letter Agreement will involve no obligation or commitment of any
kind.
Very truly yours,
[NAME]
By:___________________________________
Name:
Title:
Dated: _______________
