HealthSpring, Inc. =Shares of Common Stock (Par Value $0.01 Per Share) Underwriting Agreement
Exhibit 1.1
=Shares of Common Stock
(Par Value $0.01 Per Share)
•, 2006
Xxxxxxx, Xxxxx & Co.
Citigroup Global Markets Inc., and
UBS Securities LLC
As Representatives of the several Underwriters
named in Schedule I hereto,
Citigroup Global Markets Inc., and
UBS Securities LLC
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
|
Certain stockholders named in Schedule II hereto (the “Selling Stockholders”) of HealthSpring,
Inc., a Delaware corporation (the “Company”), propose, subject to the terms and conditions stated
herein, to sell to the Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of
shares (the “Firm Shares”) and, at the election of the Underwriters, up to additional
shares (the “Optional Shares”) of Common Stock, par value $0.01 per share (“Stock”), of the Company
(the Firm Shares and the Optional Shares which the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the “Shares”).
1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-137378) (the “Initial
Registration Statement”) in respect of the Shares has been filed with the Securities and
Exchange Commission (the “Commission”); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the
Commission in such form; other than a registration statement, if
any, increasing the size of the offering (a “Rule 462(b) Registration Statement”), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), which
became effective upon filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or, to the knowledge of the Company, threatened by the Commission
(any preliminary prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the
Act is hereinafter called a “Preliminary Prospectus”; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as amended at the time
such part of the Initial Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus
relating to the Shares that was included in the Registration Statement immediately prior to
the Applicable Time (as defined in Section 1(a)(iii) hereof) is hereinafter called the
“Pricing Prospectus”; such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the “Prospectus”; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Shares is hereinafter
called an “Issuer Free Writing Prospectus”);
(ii) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein to Items 7 and 11(m)
of Form S-1;
(iii) For the purposes of this Agreement, the “Applicable Time” is pm
(Eastern
time) on the date of this Agreement; the Pricing Prospectus as supplemented by the Issuer
Free Writing Prospectuses and other documents listed in Schedule III(a) hereto, taken
together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule III(a)
or Schedule III(b) hereto does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package
as of the Applicable Time, did not include any untrue statement of a material fact or omit
to state
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any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Representatives expressly for use
therein;
(iv) The Registration Statement conforms and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to
each part of the Registration Statement and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein to Items 7 and 11(m)
of Form S-1;
(v) The Company and its subsidiaries, when taken as a whole, have not sustained since
the date of the latest audited financial statements included in the Pricing Prospectus any
material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the
Pricing Prospectus; and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not been any change in the
capital stock (other than changes due to the Company’s repurchase of shares of restricted
common stock as described in the Pricing Prospectus, in accordance with the terms of the
related restricted stock purchase agreements) or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus;
(vi) The Company and its subsidiaries have good and marketable title to all real
property and good and marketable title to all material personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as are described
in the Pricing Prospectus or such as do not materially affect the value of such property and
do not interfere with the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not materially interfere with the use
made and proposed to be made of such property and buildings by the Company and its
subsidiaries;
(vii) The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with corporate power and authority
to own its properties and conduct its business as described in the Pricing
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Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in any such
jurisdiction, except where the failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect on the general affairs, prospects, management,
properties, financial position, stockholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole (a “Material Adverse Effect”); and each subsidiary of
the Company has been duly incorporated or formed and is validly existing as a corporation or
other entity in good standing under the laws of its jurisdiction of incorporation or
formation, with power (corporate and other) and authority to own its properties and conduct
its business as described in the Pricing Prospectus, and has been duly qualified as a
foreign corporation or other entity for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction, except
where the failure to be so qualified would not, individually or in the aggregate, have a
Material Adverse Effect;
(viii) The Company has an authorized capitalization as set forth in the Pricing
Prospectus, and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and conform to the
description of the Stock contained in the Pricing Prospectus and the Prospectus; all of the
Company’s options, warrants and other rights to purchase or exchange any securities for
shares of the Company’s capital stock have been duly authorized and validly issued, conform
in all material respects to the description thereof contained in the Prospectus and were
issued in compliance with federal and state securities laws; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except (i) for directors’ qualifying shares,
(ii) pursuant to the Company’s senior credit facility and (iii) as otherwise set forth in
the Pricing Prospectus) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims, except as set forth in the Pricing Prospectus;
(ix) The shares of Stock to be sold by the Selling Stockholders under this Agreement
have been duly authorized and validly issued and are fully paid and non-assessable and will
conform to the description of the Stock contained in the Pricing Prospectus and the
Prospectus;
(x) The compliance by the Company with this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, except for such conflicts, breaches, violations or defaults
that would not, individually or in the aggregate, have a Material Adverse Effect; nor will
such action result in any violation of the provisions of (a) the Certificate of
Incorporation or By-laws of the Company or (b) 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 (c)
4
any law or statute, except in the case of clause (b) and
(c), for such violations that would not, individually or in the aggregate, have a Material
Adverse Effect; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the
sale of the Shares or the consummation by the Company of the transactions contemplated by
this Agreement, except the registration under the Act of the Shares and such consents,
approvals, authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is (a) in violation of its
Certificate of Incorporation or By-laws or other organizational or governing documents, (b)
in default in the performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of its properties
may be bound or (c) is in violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over it or its property or assets
or has failed to obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the conduct of its
business, except in the case of clause (b) or (c), for such violations or defaults that
would not, individually or in the aggregate, have a Material Adverse Effect;
(xii) The Stock is listed on the New York Stock Exchange (the “Exchange”);
(xiii) Except as described in the Pricing Prospectus, 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;
(xiv) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption “Description of Capital Stock”, insofar as they purport to constitute a summary of
the terms of the Stock, under the caption “Certain United States Tax Consequences to
Non-United States Holders”, and under the caption “Underwriting”, insofar as such statements
purport to describe the provisions of the laws, agreements and documents referred to
therein, are accurate descriptions or summaries in all material respects;
(xv) Other than as set forth in the Pricing 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 of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect or materially interfere with the consummation of
the transactions contemplated by this Agreement; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
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(xvi) The Company is not an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(xvii) At the time of filing the Initial Registration Statement the Company was not and
is not an “ineligible issuer,” as defined under Rule 405 under the Act;
(xviii) KPMG LLP, who have certified certain financial statements of the Company and
its subsidiaries, are independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(xix) The Company and each of its subsidiaries have made and keep books, records and
accounts, which, in reasonable detail, accurately and fairly reflect the transactions and
dispositions of the assets of the Company and its subsidiaries in all material respects; the
Company has devised and maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization, (ii) transactions are recorded as necessary
to permit preparation of financial statements of the Company in conformity with generally
accepted accounting principles and to maintain accountability for assets of the Company,
(iii) access to assets of the Company is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded accountability for assets of the
Company is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xx) Since the date of the latest audited financial statements included in the Pricing
Prospectus, (a) the Company has not been advised of (1) any significant deficiencies in the
design or operation of internal controls that could adversely affect the ability of the
Company and each of its subsidiaries to record, process, summarize and report financial
data, or any material weaknesses in internal controls and (2) any fraud, whether or not
material, that involves management or other employees who have a significant role in the
internal controls of the Company and each of its subsidiaries, and (b) since that date,
there has been no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting;
(xxi) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) of the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are effective;
(xxii) Since October 11, 2005, the Company has not, directly or indirectly, including
through any subsidiary: (i) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director or executive
officer of the Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (ii) made any material modification, including any
renewal thereof, to any term of any personal loan to any director or executive officer of
the Company, or any family member or affiliate of any director or executive officer, which
loan was outstanding on October 11, 2005;
6
(xxiii) The historical financial statements (including the related notes and supporting
schedules) filed as part of the Registration Statement or included in the Pricing Prospectus
comply as to form in all material respects with the requirements of Regulation S-X under the
Securities Act and present fairly the financial condition, results of operations and cash
flows of the entities purported to be shown thereby at the dates and for the periods
indicated and have been prepared in conformity with accounting principles generally accepted
in the United States applied on a consistent basis throughout the periods involved (except
as may otherwise be indicated);
(xxiv) The Company and its subsidiaries carry, or are covered by, insurance from
insurers of recognized financial responsibility in such amounts and covering such risks as
is adequate for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in similar
industries. All policies of insurance owned by the Company or any of its subsidiaries are,
to the best of the Company’s knowledge, in full force and effect in all material respects;
the Company and its subsidiaries are in compliance with the terms of such policies in all
material respects; and neither the Company nor any of its subsidiaries has received written
notice from any insurer, agent of such insurer or the broker of the Company or any of its
subsidiaries that any material capital improvements or any other material expenditures
(other than premium payments) are required or necessary to be made in order to continue such
insurance. None of the Company or any of its subsidiaries insures risk of loss through any
captive insurance, risk retention group, reciprocal group or by means of any fund or pool of
assets specifically set aside for contingent liabilities other than in connection with the
Company’s insurance business activities or as described in the Pricing Prospectus;
(xxv) The Company and each of its subsidiaries own or possess adequate rights to use
all material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and licenses necessary for the conduct
of their respective businesses and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any notice of any claim of
conflict with, any such rights of others;
(xxvi) There are no contracts or other documents of a character required to be
described in the Registration Statement or the Pricing Prospectus or to be filed as exhibits
to the Registration Statement that are not described and filed as required;
(xxvii) No labor disturbance by the employees of the Company or its subsidiaries exists
or, to the knowledge of the Company, is imminent that would individually or in the aggregate
have a Material Adverse Effect;
(xxviii) Except as would not, individually or in the aggregate, have a Material Adverse
Effect (i) the Company and each of its subsidiaries are in compliance in all respects with
all presently applicable provisions of the Employee Retirement Income Security Act of 1974,
as amended, including the regulations and published interpretations thereunder (“ERISA”);
(ii) no “reportable event” (as defined in ERISA) has occurred with respect to any “pension
plan” (as defined in ERISA) for which the Company or any of its subsidiaries would have any
liability; (iii) the Company and its subsidiaries have not incurred and do not expect to
incur liability under (a) Title IV of ERISA with respect to termination of, or withdrawal
from, any
7
“pension plan” or (b) Sections 412 or 4971 of the Internal Revenue Code of 1986,
as amended, including the regulations and published interpretations thereunder (the “Code”);
(iv) each “pension plan” for which the Company and its subsidiaries would have any liability
that is intended to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or by failure to act, which would cause the loss of
such qualification; and (v) the Company and each of its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than for payment of
premiums in the ordinary course of business);
(xxix) The Company and each of its subsidiaries have filed all federal, state, local
and foreign income and franchise tax returns required to be filed through the date hereof
(except where the failure to file such returns would not, individually or in the aggregate,
have a Material Adverse Effect), subject to permitted extensions, and have paid all taxes
due thereon, other than those being contested in good faith and by appropriate proceedings
for which reserves have been established on the books and records of the Company and its
subsidiaries in accordance with generally accepted accounting principles in the United
States; and no tax deficiency has been determined adversely to the Company or any of its
subsidiaries, nor does the Company have any knowledge of any tax deficiency that has had or
would have, individually or in the aggregate, a Material Adverse Effect;
(xxx) Since the date as of which information is given in the Pricing Prospectus through
the date hereof, and except as set forth in the Pricing Prospectus, neither the Company nor
any of its subsidiaries has (i) issued or granted any securities (other than pursuant to
exercises of options granted pursuant to the Company’s employee benefit plans described in
the Pricing Prospectus), (ii) incurred any material liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any material transaction not in the ordinary course
of business or (iv) declared or paid any dividend on its capital stock.
(xxxi) Neither the Company nor any of its subsidiaries, or to the best knowledge of the
Company and its subsidiaries, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its subsidiaries, has (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds, (iii)
violated or is
in violation of any provision of the Foreign Corrupt Practices Act of 1977, or (iv)
made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful
payment;
(xxxii) (A) The Company and each of its subsidiaries are in compliance with and not
subject to liability under applicable Environmental Laws (as defined below), (B) the Company
and each of its subsidiaries have made all filings and provided all notices required under
any applicable Environmental Law, and have and are in compliance with all permits required
under any applicable Environmental Laws and each of them is in full force and effect and (C)
no lien, charge, encumbrance or restriction has been recorded under any Environmental Law
with respect to any assets, facility or property owned, operated, leased or controlled by
the Company or any of its subsidiaries, except in the case of clauses (A), (B) and (C) as
would not, individually or in the aggregate, have a Material Adverse Effect; there is no
civil, criminal or administrative action, suit, demand, claim, hearing, notice of violation,
8
investigation, proceeding, notice or demand letter or request for information pending or, to
the knowledge of the Company or any of its subsidiaries, threatened against the Company or
any of its subsidiaries under any Environmental Law; neither the Company nor any of its
subsidiaries has received notice that it has been identified as a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (“CERCLA”), or any comparable state law; and no property or facility of the
Company or any of its subsidiaries is (i) listed or proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to CERCLA, or, to the
knowledge of the Company, on any comparable list maintained by any state or local
governmental authority;
For purposes of this Agreement, “Environmental Laws” means the common law and all applicable
federal, state and local laws or regulations, codes, orders, decrees, judgments or
injunctions issued, promulgated, approved or entered thereunder, relating to pollution,
hazardous or toxic substances, wastes or contaminants or protection of public or employee
health and safety or the environment, including, without limitation, laws relating to (i)
emissions, discharges, releases or threatened releases of hazardous materials into the
environment (including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of hazardous materials and
(iii) underground and above ground storage tanks and related piping, and emissions,
discharges, releases or threatened releases therefrom;
(xxxiii) The Company has not taken and will not take, directly or indirectly, any
action designed to or that has constituted or that could 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 shares of the Stock;
(xxxiv) The Company has not distributed and, prior to the later to occur of any Time of
Delivery (as defined in Section 4 hereof) and completion of the distribution of the Stock,
will not distribute any offering material in connection with the offering and sale of the
Stock other than the Pricing Prospectus, the Prospectus and, subject to compliance with
Section 6(a) hereof, any Issuer Free Writing Prospectus;
(xxxv) The Company and its subsidiaries have made all required filings under applicable
insurance holding company statutes, and have received approvals of acquisition of control
and/or affiliate transactions, in each jurisdiction in which such filings or approvals are
required, except where the failure to have made such filings or receive such approvals in
any such jurisdiction would not, individually or in the aggregate, have a Material Adverse
Effect. Each of the Company and its subsidiaries: (A) holds such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals from insurance
departments and other governmental or regulatory authorities (each, an “Authorization”)
(including, without limitation, insurance licenses from the insurance regulatory agencies of
the various states or other jurisdictions where it conducts business (the “Insurance
Licenses”)), and has made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other tribunals, as are
necessary to own, lease, license and operate its respective properties and to conduct its
business in the manner described in the
9
Pricing Prospectus, except where the failure to have
any Authorization or Insurance License or to make any such filing or notice would not,
individually or in the aggregate, have a Material Adverse Effect, and (B) has fulfilled and
performed all obligations necessary to maintain such Authorizations and Insurance Licenses,
except where the failure to perform such obligations would not, individually or in the
aggregate, have a Material Adverse Effect. Except as would not, individually or in the
aggregate, have a Material Adverse Effect (A) each such Authorization and Insurance License
is valid and in full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with respect thereto; and (B) no
event has occurred (including, without limitation, the receipt of any notice from any
authority or governing body, the execution, delivery and performance of this Agreement by
the Company, the sale and delivery of the Stock and the compliance by the Company with all
of the provisions hereof and the consummation by the Company and its subsidiaries of the
transactions contemplated in this Agreement) which allows or, after notice or lapse of time
of both, would allow, revocation, suspension or termination of any such Authorization or
Insurance License or results or, after notice or lapse of time or both, would result in any
impairment of the rights of the holder of any such Authorization or Insurance License.
Except as disclosed in the Pricing Prospectus, no insurance regulatory agency or body has
issued any order or decree impairing, restricting or prohibiting the payment of dividends by
any Company subsidiary to its respective parent which would, individually or in the
aggregate, have a Material Adverse Effect;
(xxxvi) The statutory financial statements of the subsidiaries of the Company that are
insurance companies (the “Insurance Subsidiaries”), from which certain ratios and other
statistical data filed as a part of the Registration Statement or included in the Pricing
Prospectus have been derived: (A) have for each relevant period been prepared in conformity
with statutory accounting practices required or permitted by the National Association of
Insurance Commissioners and by the insurance laws of their respective states of domicile,
and the rules and regulations promulgated thereunder, and such statutory accounting
practices have been applied on a consistent basis throughout the periods involved, except as
may otherwise be indicated therein or in the notes thereto; and (B) present fairly in all
material respects the statutory financial position of the Insurance Subsidiaries as at the
dates thereof, and the statutory basis results of operations of the Insurance Subsidiaries
for the periods covered thereby;
(xxxvii) Neither the Company nor any of its Insurance Subsidiaries has received any
notice from any of the other parties to any of its reinsurance treaties, contracts,
agreements or arrangements that such other party intends not to perform its obligations
thereunder and none of them has any reason to believe that any of the other parties to such
treaties, contracts, agreements or arrangements will be unable to perform its obligations
thereunder, except to the extent that such nonperformance would not, individually or in the
aggregate, have a Material Adverse Effect. None of the Company or any of its subsidiaries
has entered into any “finite risk” insurance transaction or any other retroactive loss
financing arrangement;
(xxxviii) The Company has not received notice of any investigation relating to brokers’
commissions by any insurance regulatory agency of any state; and
10
(xxxix) The statistical and market and industry-related data included in the
Registration Statement, any Preliminary Prospectus and the Prospectus are based on or
derived from sources which the Company believes to be reliable and accurate or represent the
Company’s good faith estimates that are made on the basis of data derived from such sources.
(b) Each of the Selling Stockholders severally represents and warrants to, and agrees with,
each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for the execution and
delivery by such Selling Stockholder of this Agreement and the Power of Attorney and the
Custody Agreement hereinafter referred to, and for the sale and delivery of the Shares to be
sold by such Selling Stockholder hereunder, have been obtained; and such Selling Stockholder
has full right, power and authority to enter into this Agreement, the Power-of-Attorney and
the Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by
such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling Stockholder hereunder and the
compliance by such Selling Stockholder with all of the provisions of this Agreement, the
Power of Attorney and the Custody Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Partnership Agreement of such Selling Stockholder if
such Selling Stockholder is a partnership or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over such Selling Stockholder
or the property of such Selling Stockholder;
(iii) Such Selling Stockholder has, and immediately prior to the Time of Delivery (as
defined in Section 4 hereof) such Selling Stockholder will have, good and valid title to the
Shares to be sold by such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares and payment
therefor pursuant hereto, good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, will pass to the several Underwriters;
(iv) During the period beginning from the date hereof and continuing to and including
the date 90 days after the date of the Prospectus (the “Lock-Up Period”), not to offer,
sell, contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of, except as provided hereunder, any securities of the Company that are
substantially similar to the Shares, including but not limited to any options or warrants to
purchase shares of Stock or any securities that are convertible into or exchangeable for, or
that represent the right to receive, Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent; provided, however, that if
(1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings
results or announces material news or a material
11
event or (2) prior to the expiration of the
initial Lock-Up Period, the Company announces that it will release earnings results during
the 16-day period following the last day of the initial Lock-Up Period, then in each case
the Lock-Up Period will be automatically extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the announcement of the material
news or material event, as applicable, unless each of Xxxxxxx, Xxxxx & Co., Citigroup Global
Markets Inc. and UBS Securities LLC waive, in writing, such extension; such Selling
Stockholder hereby acknowledges that the Company has agreed herein to provide written notice
of any event that would result in an extension of the Lock-Up Period pursuant to the
previous sentence to such Selling Stockholder (in accordance with Section 12 herein) and
agrees that any such notice properly delivered will be deemed to have been given to, and
received by, the Selling Stockholder; such Selling Stockholder hereby further agrees that,
prior to engaging in any transaction or taking any other action that is subject to the terms
of this provision during the period from the date hereof to and including the 34th day
following the expiration of the initial Lock-Up Period, it will give notice thereof to the
Company and will not consummate such transaction or take any such action unless it has
received written confirmation from the Company that the Lock-Up Period (as such may have
been extended pursuant to the previous paragraph) has expired;
(v) Such Selling Stockholder has not taken and will not take, directly or indirectly,
any action which is designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made
in reliance upon and in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further amendments or supplements to
the Registration Statement and the Prospectus, when they become effective or are filed with
the Commission, as the case may be, will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder and will
not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, that, the representations and warranties set forth in this Section
1(b)(vi) are limited to any such statement and omission;
(vii) In order to document the Underwriters’ compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect
to the transactions herein contemplated, such Selling Stockholder will deliver to you prior
to or at the First Time of Delivery (as defined in Section 4 hereof) a properly completed
and executed United States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof);
(viii) Certificates in negotiable form representing all of the Shares to be sold by
such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in
the form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered
by such Selling Stockholder to Xxxxx X. XxXxxxxx and X. Xxxxxx Xxxxxx, as custodians (the
“Custodians”), and such Selling Stockholder has duly executed and delivered
12
a Power of
Attorney, in the form heretofore furnished to you (the “Power of Attorney”), appointing the
persons indicated in Schedule II hereto, and each of them, as such Selling Stockholder’s
attorneys-in-fact (the “Attorneys-in-Fact”) with authority to execute and deliver this
Agreement on behalf of such Selling Stockholder, to determine the purchase price to be paid
by the Underwriters to the Selling Stockholders as provided in Section 2 hereof, to
authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and
otherwise to act on behalf of such Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement; and
(ix) The Shares represented by the certificates held in custody for such Selling
Stockholder under the Custody Agreement are subject to the interests of the Underwriters
hereunder; the arrangements made by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney,
are to that extent irrevocable; the obligations of the Selling Stockholders hereunder shall
not be terminated by operation of law, whether by the death or incapacity of any individual
Selling Stockholder or, in the case of an estate or trust, by the death or incapacity of any
executor or trustee or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or corporation, or by the
occurrence of any other event; if any individual Selling Stockholder or any such executor or
trustee should die or become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should be dissolved, or if any other
such event should occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the Selling Stockholders in
accordance with the terms and conditions of this Agreement and of the Custody Agreements;
and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other event had not
occurred, regardless of whether or not the Custodians, the Attorneys-in-Fact, or any of
them, shall have received notice of such death, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, (a) each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from each of the Selling
Stockholders, at a purchase price per share of $ , the number of Firm Shares (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares to be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate
number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm
Shares to be purchased by all of the Underwriters from all of the Selling Stockholders hereunder
and (b) in the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, each of GTCR Fund VIII, L.P., GTCR Fund VIII/B, L.P.
and GTCR Co-Invest II, L.P. (collectively, the “Option Selling Stockholders”) agrees, severally and
not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from each of the Option Selling Stockholders, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I
13
hereto and the
denominator of which is the maximum number of Optional Shares that all of the Underwriters are
entitled to purchase hereunder.
The Option Selling Stockholders, as and to the extent indicated in Schedule II hereto, hereby
grant, severally and not jointly, to the Underwriters the right to purchase at their election up to
_ Optional Shares, at the purchase price per share set forth
in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of
Firm Shares. Any such election to purchase Optional Shares shall be made in proportion to the
number of Optional Shares to be sold by each Option Selling Stockholder. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the Attorneys in Fact,
given within a period of 30 calendar days after the date of this Agreement and setting forth the
aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are
to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Attorneys in Fact otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as the Representatives may request upon
at least forty-eight hours’ prior notice to the Selling Stockholders shall be delivered by or on
behalf of the Selling Stockholders to the Representatives, through the facilities of the Depository
Trust Company (“DTC”), for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Custodian to the Representatives at least forty-eight hours in advance.
The Company will cause the certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with
respect thereto at the office of DTC or its designated custodian (the “Designated Office”). The
time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30
a.m., New York time, on
_ , 2006, or such other time and date as the Representatives
and the Selling Stockholders may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by the Representatives in the written notice given
by the Representatives of the Underwriters’ election to purchase such Optional Shares, or such
other time and date as the Representatives and the Option Selling Stockholders may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the “First Time of
Delivery”, such time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the “Second Time of Delivery”, and each such time and date for delivery
is herein called a “Time of Delivery”.
(a) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 8(m) hereof, will be delivered at the
offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 0 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
“Closing Location”), and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 5:30 p.m., New York City time, on the
New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be available for review by
the
14
parties hereto. For the purposes of this Section 4, “New York Business Day” shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or
any supplement to the Registration Statement or the Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or becomes effective or
any amendment or supplement to the Prospectus has been filed and to furnish you with copies
thereof; to file promptly all material required to be filed by the Company with the Commission
pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or other prospectus in respect of the Shares, of the suspension of
the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for additional
information; 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 other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the Shares and if at such
time any 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 (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus in order to comply with the
Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many written and electronic copies as you may from time to time
reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement or omission or
effect such compliance, and in case any Underwriter is required to deliver a prospectus (or in lieu
thereof,
15
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of
the Shares at any time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the initial Lock-Up Period, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Shares, including but not limited
to any options or warrants to purchase shares of Stock or any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or any such substantially
similar securities (other than pursuant to employee equity incentive or stock option plans or
restricted stock purchase agreements existing on the date of this Agreement or otherwise described
in the Prospectus, or upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior written consent;
provided, however, that if (1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or announces material news or a material event or (2)
prior to the expiration of the initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period following the last day of the initial Lock-Up Period,
then in each case the Lock-Up Period will be automatically extended until the expiration of the
18-day period beginning on the date of release of the earnings results or the announcement of the
material news or material event, as applicable, unless each of Xxxxxxx, Xxxxx & Co., Citigroup
Global Markets Inc. and UBS Securities LLC waive, in writing, such extension; the Company will
provide the Representatives and any co-managers and each stockholder subject to the Lock-Up Period
pursuant to the lockup letters described in Section 1(b)(iv) and 8(k) with prior notice of any such
announcement that gives rise to an extension of the Lock-up Period;
(f) During a period of three years from the effective date of the Registration Statement,
provided that the Company is required to file such reports (described in this Section 5 (f)), to
furnish to its stockholders as soon as practicable after the end of each fiscal year an annual
report (including a balance sheet and statements of income, stockholders’ equity and cash flows of
the Company and its consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the Registration Statement),
to make available to its stockholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail; provided, however, that the Company may
satisfy the requirements of this subsection 5(f) by making any such reports, communications or
information generally available on its web site or by filing such information with the Commission
via XXXXX;
(g) During a period of three years from the effective date of the Registration Statement, to
furnish to you copies of all reports or other communications (financial or other) furnished to
stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange
on
16
which any class of securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission); provided, however, that the Company may satisfy the
requirements of this subsection 5(g) by making any such reports, communications or information
generally available on its web site or by filing such information with the Commission via XXXXX;
(h) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(i) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering
of the Shares (the “License”); provided, however, that the License shall be used
solely for the purpose described above, is granted without any fee and may not be assigned or
transferred.
6. (a) The Company represents and agrees that, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the Shares that would
constitute a “free writing prospectus” as defined in Rule 405 under the Act; each Underwriter
represents and agrees that, without the prior consent of the Company and the Representatives, it
has not made and will not make any offer relating to the Shares that would constitute a free
writing prospectus; any such free writing prospectus the use of which has been consented to by the
Company and the Representatives is listed on Schedule III(a) or Schedule III(b) hereto;
(b) Each Selling Stockholder represents and agrees that it has not made and will not make any
offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule
405 under the Act.
(c) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show; and
(d) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the circumstances then
prevailing, not
misleading, the Company will give prompt notice thereof to the Representatives and, if requested by
the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free
Writing Prospectus or other document which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
17
information furnished in writing to the Company by an Underwriter through the Representatives
expressly for use therein.
7. (a) The Company agrees with the several Underwriters that the Company will pay or cause to
be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and
accountants and one counsel for the Selling Stockholders in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation, printing,
reproduction and filing of the Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv)
all fees and expenses in connection with listing the Shares on the Exchange; (v) the filing fees
incident to, and the reasonable fees and disbursements of counsel for the Underwriters in
connection with any required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar, (viii) the fees and expenses of the Attorneys-in-Fact
and the Custodian; (ix) all expenses (other than taxes and underwriting discounts) incident to the
sale and delivery of the Shares to be sold by such Selling Stockholder to the Underwriters
hereunder; and (x) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It is understood,
however, that the Company shall bear, and the Selling Stockholders shall not be required to pay or
to reimburse the Company for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may make. Notwithstanding the
foregoing, in respect of any employee of any Underwriter traveling on a private jet used in
connection with any investor presentation or “road show” related to the offering contemplated by
this Agreement, each applicable Underwriter will reimburse the Company for the cost of such
employee’s flight at the full-fare rate for a first class ticket on a commercial flight between the
points traveled on such dates.
(a) The Selling Stockholders covenant and agree with the several Underwriters (i) that they
will pay or cause to be paid all taxes incident to the sale and delivery of the Shares to be sold
by such Selling Stockholder to the Underwriters hereunder, and (ii) the underwriting discount
associated with the Shares to be sold by such Selling Stockholder hereunder shall be deducted from
the Selling Stockholders’ proceeds from the sale of such Shares.
8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company and of the Selling Stockholders herein are, at
and as of such Time of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder theretofore to be
performed, and the following additional conditions:
18
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filing by Rule 433 under the Act; if the Company has
elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have
become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or threatened by the
Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free
Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of Delivery, in form and
substance satisfactory to you, with respect to certain legal matters relating to this Agreement and
such other related matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Bass, Xxxxx & Xxxx PLC, counsel for the Company, shall have furnished to you their written
opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect set
forth in Annex II (a) hereto;
(d) The respective counsel for each of the Selling Stockholders, as indicated in Schedule II
hereto, each shall have furnished to you their written opinion with respect to each of the Selling
Stockholders for whom they are acting as counsel, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect set forth in Annex II(b) hereto;
(e) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, KPMG
LLP shall have furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto;
(f) The chief executive officer and chief financial officer of the Company shall have
furnished to you an officer’s certificate, dated as of such Time of Delivery, substantially in the
form set forth in Annex III hereto;
(g) (i) The Company and its subsidiaries, when taken as a whole, shall not have sustained
since the date of the latest audited financial statements included in the Pricing Prospectus any
loss or interference with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus there shall not have been any
change in the capital stock (other than changes due to the Company’s repurchase of shares of
restricted common stock as described in the Pricing Prospectus, in accordance with the terms of the
related restricted stock purchase agreements) 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
19
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is
in the judgment of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares being delivered at
such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s financial strength or claims paying ability by any “nationally recognized
statistical rating organization”, as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of the Company’s
financial strength or claims paying ability;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the Exchange; (ii) a
suspension or material limitation in trading in the Company’s securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war or (v) the occurrence
of any other calamity or crisis or any change in financial, political or economic conditions in the
United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectus;
(j) The Shares at such Time of Delivery shall have been duly listed, subject to notice of
issuance, on the Exchange;
(k) The Company shall have obtained and delivered to the Underwriters executed copies of an
agreement from each of the Company’s directors and officers, the Selling Stockholders and the other
stockholders of the Company set forth on Schedule IV hereto, substantially to the effect set forth
in Subsection 1(b)(iv) hereof in form and substance satisfactory to you;
(l) The Company shall have complied with the provisions of Section 5(c) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(m) The Company and the Selling Stockholders shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company and duly authorized
representatives of the Selling Stockholders, respectively, satisfactory to you as to the accuracy
of the representations and warranties of the Company and the Selling Stockholders, respectively,
herein at and as of such Time of Delivery, as to the performance by the Company and the Selling
Stockholders of all of their respective obligations hereunder to be performed at or prior to such
Time of Delivery, and as to such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set forth in subsections
(a) and (g) of this Section;
20
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein.
(a) Each of the Selling Stockholders, severally and not jointly, will indemnify and hold
harmless each Underwriter, its partners, directors and officers, and any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or any such person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus,
the Pricing
Prospectus, any Issuer Free Writing Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein; and will reimburse
each Underwriter or any such person for any legal or other expenses reasonably incurred by such
Underwriter or any such person in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that such Selling
Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for
use therein; and provided
further, that the liability of a Selling Shareholder pursuant to this subsection (b) shall not
exceed the product of the number of Shares sold by such Selling Shareholder (including Optional
Shares) and the public offering price of the Shares as set forth in the Prospectus.
21
(b) Each Underwriter will indemnify and hold harmless the Company and each Selling Stockholder
against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder
may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged omission was made in
the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company and each Selling
Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof (each such notice to the indemnifying party, a
“Notice”); but the omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party. The Company shall not be required
to indemnify the Underwriters for any amount paid or payable by the Underwriters in the settlement
of any action, proceeding or investigation without the written consent of the Company, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such
22
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from the offering of the
Shares. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the Notice required under
subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault (including, without limitation, the failure by the indemnified
party to provide Notice) of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Selling Stockholders bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Stockholders on the one hand or
the Underwriters on the other and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company, each of the Selling
Stockholders and the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations in this subsection (e) to contribute
are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholders under this Section 9 shall be
in addition to any liability which the Company and the respective Selling Stockholders may
otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including any person who, with
his or her consent, is named in the Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company or any Selling Stockholder within the
meaning of the Act.
23
10. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has
agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Selling Stockholders shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to purchase such Shares
on such terms. In the event that, within the respective prescribed periods, you notify the Selling
Stockholders that you have so arranged for the purchase of such Shares, or the Selling Stockholders
notify you that they have so arranged for the purchase of such Shares, you or the Selling
Stockholders shall have the right to postpone a Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement
shall include any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(a) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Selling Stockholders as provided in subsection (a)
above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh
of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting Underwriter to purchase
the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery
and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based
on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Selling Stockholders as provided in subsection (a)
above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholders shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then
this Agreement (or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company and the Selling
Stockholders and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Selling Stockholders and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or
the Company, or any of the Selling Stockholders, or any officer or director or controlling person
of the Company, or any
24
controlling person of any Selling Stockholder, and shall survive delivery of
and payment for the Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company
nor the Selling Stockholders shall then be under any liability to any Underwriter except as
provided in Sections 7 and 9 hereof; but, if for any other reason (other than pursuant to Section
8(i)) any Shares are not delivered by or on behalf of the Selling Stockholders as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in
writing by you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the Selling Stockholders shall then be under no further liability to
any Underwriter in respect of the Shares not so delivered except as provided in Sections 7 and 9
hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly or by the Representatives on behalf of
you as the representatives; and in all dealings with any Selling Stockholder hereunder, you and the
Company shall be entitled to act and rely upon any statement, request, notice or agreement on
behalf of such Selling Stockholder made or given by any or all of the Attorneys-in-Fact for such
Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of (i) Xxxxxxx, Sachs & Co., 0 Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Registration Department (facsimile number (000) 000-0000), (ii) Citigroup
Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel,
and (iii) UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Syndicate Department; if to any Selling Stockholder shall be delivered or sent by mail, telex or
facsimile transmission to counsel for such Selling Stockholder at its address set forth in Schedule
II hereto; and if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to Section
9(d) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters’ Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling Stockholders by you on
request; provided, however, that notices under subsection 5(e) shall be in writing,
and (a) if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission
to you as the representatives at (i) Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Control Room, (ii) Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel, and (iii) UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention: Syndicate Department, and (b) if to the Selling
Stockholders, at the address listed for each Selling Stockholder on Schedule II, attached hereto.
Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and the Selling Stockholders and, to the extent provided in Sections 9
and 11 hereof, the officers and directors of the Company and each person who controls the Company,
any Selling Stockholder or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of
this
25
Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
15. The Company and each of the Selling Stockholders acknowledge and agree that (i) the
purchase and sale of the Shares pursuant to this Agreement, including the determination of the
public offering price of the Shares and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company and the Selling Stockholders, on the one hand, and the
several Underwriters, on the other, (ii) in connection therewith and with the process leading to
such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company, the Selling Stockholders, or their respective stockholders, creditors, employees or
any other party, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor
of the Company or any Selling Stockholders with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company of any Selling Stockholder on other matters) or any other obligation to the
Company or any Selling Stockholder except the obligations expressly set forth in this Agreement,
and (iv) the Company and each of the Selling Stockholders has consulted its own legal and financial
advisors to the extent it deemed appropriate. The Company and each of the Selling Stockholders
severally agree that each will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or
such Selling Stockholder, in connection with such transaction or the process leading thereto.
16. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
18. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
19. Notwithstanding anything herein to the contrary, the Company and the Selling Stockholders
are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Company and the Selling Stockholders relating to that treatment
and structure, without the Underwriters imposing any limitation of any kind. However, any
information relating to the tax treatment and tax structure shall remain confidential (and the
foregoing sentence shall not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to
that treatment.
20. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
21. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
26
If the foregoing is in accordance with your understanding, please sign and return to us one
for the Company and each of the Representatives plus one for each counsel and the Custodian, if any
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be submitted to the
Company and the Selling Stockholders for examination, upon request, but without warranty on your
part as to the authority of the signers thereof.
27
Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling
Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such
Selling Stockholder pursuant to a validly existing and binding Power-of-Attorney which authorizes
such Attorney-in-Fact to take such action.
| Very truly yours, | ||||||
| HealthSpring, Inc. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| GTCR FUND VIII, L.P. | ||||||
| By: | GTCR Partners VIII, L.P. | |||||
| Its: | General Partner | |||||
| By: | GTCR Xxxxxx Xxxxxx XX, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | ||||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Its: | Principal | |||||
| GTCR FUND VIII/B, L.P. | ||||||
| By: | GTCR Partners VIII, L.P. | |||||
| Its: | General Partner | |||||
| By: | GTCR Xxxxxx Xxxxxx XX, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | ||||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Its: | Principal | |||||
| GTCR CO INVEST II, L.P. | ||||||
| By: | GTCR Xxxxxx Xxxxxx XX, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | ||||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Its: | Principal | |||||
Accepted as of the date hereof
| Xxxxxxx, Xxxxx & Co. | ||||||
| By: | ||||||
| (Xxxxxxx, Sachs & Co.) | ||||||
| Citigroup Global Markets Inc. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| UBS Securities LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
On behalf of each of the Underwriters
SCHEDULE I
| Number of Optional | ||||||||
| Shares to be | ||||||||
| Total Number of | Purchased if | |||||||
| Firm Shares | Maximum Option | |||||||
| Underwriter | to be Purchased | Exercised | ||||||
Xxxxxxx, Xxxxx & Co |
||||||||
Citigroup Global Markets Inc |
||||||||
UBS Securities LLC |
||||||||
Xxxxxx Brothers Inc |
||||||||
Banc of America Securities LLC |
||||||||
CIBC World Markets |
||||||||
Xxxxxxx Xxxxx & Associates, Inc |
||||||||
Avondale Partners LLC |
||||||||
Total |
||||||||
SCHEDULE II
| Number of Optional | ||||||||
| Shares to be | ||||||||
| Total Number of | Sold if | |||||||
| Firm Shares | Maximum Option | |||||||
| to be Sold | Exercised | |||||||
The Selling Stockholder(s): |
||||||||
GTCR Fund VIII, L.P(1).
c/o GTCR Xxxxxx Xxxxxx XX, L.L.C. 0000 Xxxxx Xxxxx Xxxxxxx, XX 00000 |
||||||||
GTCR Fund VIII/B, L.P. (1)
c/o GTCR Xxxxxx Xxxxxx XX, L.L.C. 0000 Xxxxx Xxxxx Xxxxxxx, XX 00000 |
||||||||
GTCR Co-Invest II, L.P(1)
c/o GTCR Xxxxxx Xxxxxx XX, L.L.C. 0000 Xxxxx Xxxxx Xxxxxxx, XX 00000 |
||||||||
[Other Selling Stockholders] |
||||||||
Total |
||||||||
| (1) | Represented by Xxxxxxxx & Xxxxx, LLP, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, P.C. and Xxxxxxx X. Fine, Esq., Telephone: (000) 000-0000, Facsimile: (000) 000-0000, and has appointed Xxxxx X. XxXxxxxx and X. Xxxxxx Xxxxxx, and each of them, as the Attorneys-in-Fact for such selling stockholder. |
SCHEDULE III
| (a) | Materials other than the Pricing Prospectus that comprise the Pricing Disclosure Package: | ||
| None. | |||
| (b) | Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package: |
(i) Electronic roadshow made available by means of graphic communication on a limited
password-protected basis through Yahoo! NetRoadshow, including written communication made available
only as part of such roadshow and not separately.
SCHEDULE IV
ANNEX I
FORM OF COMFORT LETTER
ANNEX II
Forms of Opinions
ANNEX III
Form of Chief Executive Officer & Chief Financial Officer Certificate
