Artio Global Investors Inc. Class A Common Stock, par value $0.001 per share Underwriting Agreement
Exhibit 1
Class A Common Stock, par value $0.001 per share
[__], 2010
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
As representative of the several Underwriters
named in Schedule I hereto.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
As representative of the several Underwriters
named in Schedule I hereto.
Ladies and Gentlemen:
Artio Global Investors Inc., a Delaware corporation (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and 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 Class A Common Stock, par
value $0.001 (“Stock”), of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively called the
“Shares”).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-166992) (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 but including all
documents incorporated by reference in the prospectus contained therein, 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 or document incorporated by reference therein 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 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(c)
hereof) is hereinafter called the “Pricing Prospectus”; and such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter called the “Prospectus”; any
reference herein to any Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12
of Form S-1 under the Act, as of the date of such 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”);
(b) 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 ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is [___] p.m. (Eastern time) on
the date of this Agreement. The Pricing Prospectus, as of the Applicable Time, together with the
number of shares and price per share to the public, 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 II 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 Prospectus 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; 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), as applicable, and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to statements
or omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and no such
documents were filed with the Commission since the Commission’s close of business on the business
day immediately prior to the date of this Agreement and prior to the execution of this Agreement[,
except as set forth on Schedule II(b) hereto];
(e) 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 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference 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 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;
(g) Neither the Company nor any of its subsidiaries own any real property. The Company and
its subsidiaries have good and marketable title in fee simple to all 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 interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries;
(h) (i) 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 power and authority (corporate and
other) to own its properties and conduct its business as described in the Pricing 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, except where such failure to be so
qualified and in good standing would not, individually or in the aggregate, have a material adverse
effect on the general affairs, management, prospects, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse
Effect”); (ii) Artio Global Holdings LLC (“Artio LLC”) has been duly formed and is validly existing
as a limited liability company in good standing under the laws of the State of Delaware, with power
and authority (limited liability company power and other) to own its properties and conduct its
business as described in the Pricing Prospectus, and has been duly qualified as a foreign limited
liability company for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any business so as to require
such qualification, except where any such failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse Effect; and (iii) each subsidiary of
the Company has been duly organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, except where any such failure to be so qualified
and in good standing would not, individually or in the aggregate, have a Material Adverse
Effect;
(i) The Company has an authorized capitalization as set forth in the Pricing Prospectus and
all of the issued shares of capital stock (including the Stock, the Class B common stock, par value
$0.001 per share (the “Class B Stock”) and Class C common stock, par value $0.01 per share
(together with the Stock and the Class B Stock, the “Common 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 Common Stock contained in the Pricing Prospectus and the Prospectus;
(j) All of the membership interests of each subsidiary of the Company have been duly and
validly authorized and issued and (except 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;
(k) The issue and sale of the Shares and 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, (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, (ii) the certificate of incorporation or by-laws (or other organizational documents) of
the Company or any of its subsidiaries, or (iii) any statute, 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, except in the case of clauses (i) and (iii) as would not,
individually or in the aggregate, have a Material Adverse Effect or have a material adverse effect
on the consummation of the transactions contemplated herein; and no consent, approval,
authorization, order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except 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;
(l) Neither the Company nor any of its subsidiaries is (i) in violation of its certificate of
incorporation or by-laws, or such other organizational documents or (ii) 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, except in the case of
clause (ii) for any default that would not, individually or in the aggregate, have a Material
Adverse Effect or have a material adverse effect on the consummation of the transactions
contemplated herein;
(m) The statements set forth in the Pricing Prospectus and Prospectus under the caption
“Description of Capital Stock”, insofar as they purport to constitute a summary of the terms of the
Common Stock (including the Stock), under the caption “Material U.S. Federal Tax Considerations for
Non-U.S. Holders of Our Class A Common Stock”, and under the captions “Related Party Transactions”
and “Underwriting”, insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all material respects;
(n) 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 have a material adverse effect on the consummation of the transactions
contemplated herein; and, to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(o) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be required to register as an “investment company”,
as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company
Act”);
(p) The Company is not an “ineligible issuer,” as defined under Rule 405 under the Act;
(q) KPMG LLP, who have certified certain financial statements of the Company and its
subsidiaries are independent public accountants as and to the extent required by the Act and the
rules and regulations of the Commission thereunder;
(r) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The Company is not aware of
any material weaknesses in its internal control over financial reporting;
(s) Since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, there has been no change in the Company’s internal control
over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting;
(t) Except as disclosed in the Pricing Prospectus, the Company’s internal accounting controls
are sufficient to provide reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with U.S. generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(u) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under 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 in all material respects;
(v) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed
to by the Company or any of its affiliates, that together with the Company would be deemed a
“single employer” within the meaning of Section 4001(b)(1) of ERISA (“ERISA Affiliates”) for
employees or former employees of the Company and its ERISA Affiliates has been maintained in
compliance in all material respects with its terms and the requirements of any applicable statutes,
orders, rules and regulations, including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the “Code”); no prohibited transaction, within the meaning of Section 406 of
ERISA or Section 4975 of the Code, for which the Company or any of its ERISA Affiliates would have
any material liability has occurred with respect to any such plan excluding transactions effected
pursuant to a statutory or administrative exemption; for each such plan that is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the
fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions; 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 ERISA
Affiliates would have any material liability; and neither the Company nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any
material liability under Title IV of ERISA with respect to termination of, or withdrawal from,
any “pension plan”;
(w) The Company is not required to be registered, licensed or qualified as an investment
adviser, a broker-dealer, a commodity trading advisor, a commodity pool operator or a futures
commission merchant; each of the Company’s subsidiaries that is required to be registered, licensed
or qualified as an investment adviser, a broker-dealer, a commodity trading advisor, a commodity
pool operator or a futures commission merchant is so registered, licensed or qualified in each
jurisdiction where the conduct of its business requires such registration, license or qualification
(and such registration, license or qualification is in full force and effect), and is in compliance
with all applicable laws requiring any such registration, licensing or qualification, except as set
forth in or contemplated in the Pricing Prospectus or where the failure to be so registered,
licensed or qualified would not, individually or in the aggregate, result in a Material Adverse
Effect; each of the Company’s subsidiaries that is required to be registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), has adopted a
written compliance program reasonably designed to ensure compliance with the Advisers Act and has
appointed a chief compliance officer, except where the failure to do so would not, individually or
in the aggregate, result in a Material Adverse Effect;
(x) The Company does not directly advise any of the Artio Global mutual funds (the “Artio
Global Funds”) and is not a party to any investment advisory agreement; each investment advisory
agreement to which any of the subsidiaries is a party is a valid and legally binding obligation of
such subsidiary and is in compliance with the applicable provisions of the Advisers Act, except as
have not had and would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, and none of the subsidiaries is in breach or violation of or in default
under any such agreement, which breach, violation, default or invalidity has had or would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, except
as set forth in or contemplated in the Pricing Prospectus;
(y) Except as set forth in the Pricing Prospectus, consummation of the transactions
contemplated by this Agreement and the Exchange Agreement, as amended (each substantially in the
form filed as exhibits to the Registration Statement), will not adversely affect in any material
respect the ability of the Company or its subsidiaries to conduct their respective businesses as
described in the Pricing Prospectus and the Prospectus in compliance with applicable law,
including, but not limited to, providing investment advisory services to clients and funds, whether
or not such funds are registered under the Investment Company Act;
(z) Neither the Company nor any of its subsidiaries, and, to the knowledge of the Company, no
director, officer, agent, employee or other person
acting on behalf of the Company or any of its subsidiaries or the Artio Global Funds, has
violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977; or
made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment;
(aa) The operations of the Company and its subsidiaries and, to the knowledge of the Company,
the Artio Global Funds, are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company its
subsidiaries or, to the knowledge of the Company, the Artio Global Funds, with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened, except as would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
(bb) To the best of the Company’s knowledge, none of the Company, its subsidiaries, the Artio
Global Funds or any of their respective affiliates is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and
the Company will not knowingly, directly or indirectly, use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to the subsidiaries, the Artio Global Funds or
any joint venture partner or other person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by OFAC;
(cc) None of the subsidiaries that acts as a general partner or managing member (or in a
similar capacity) or as an investment adviser or investment manager of any Artio Global Fund has
performed any act or otherwise engaged in any conduct that would prevent such subsidiary from
benefiting from any exculpation clause or other limitation of liability available to it under the
terms of the management agreement or advisory agreement, as applicable, between such subsidiary and
such Artio Global Fund, except, in each case, as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; and
(dd) Except as disclosed in the Pricing Prospectus, there are no contracts, agreements or
understandings between the Company or its subsidiaries and any person granting such person the
right to require the Company to file a registration statement under the 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 Act.
2. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at a purchase price per share of $[___], the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, 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 hereto and the
denominator of which is the maximum number of Optional Shares that all of the Underwriters are
entitled to purchase hereunder.
The Company hereby grants 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, provided that the
purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm Shares but not payable on the
Optional Shares. Any such election to purchase Optional Shares may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days after the date of this
Agreement, 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 Company
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 ▇▇▇▇▇▇▇, Sachs & Co. may request upon
at least forty-eight hours’ prior notice to the Company shall be delivered by or on behalf of the
Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., 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 Company to ▇▇▇▇▇▇▇, Sachs & Co. 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 City time, on [___], 2010 or such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the
Company may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York
time, on the date specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. of the Underwriters’ election to purchase such Optional Shares, or such other time and date as
▇▇▇▇▇▇▇, Sachs & Co. and the Company 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”.
(b) 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(l) hereof, will be delivered at the
offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 125 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (▇▇e “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 3:00 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 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 City 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 prior to the last Time of Delivery
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 event 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, 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 sixteen 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 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, except as
provided hereunder, of 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 (i) the issuance by the Company of shares of Stock
upon the vesting of a restricted stock unit, the exercise of an option or warrant, or the
conversion or exchange of convertible or exchangeable securities, in each case that is outstanding
on the date of this Agreement, or the exchange of Class A units of Artio LLC by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, (ii) the issuance by the Company of restricted stock units, as grants that are
not scheduled to vest during the Lock-Up Period or as dividend equivalents, granted under any
employee benefit plans existing on the date hereof and described in the Pricing Prospectus; (iii)
the grant of options or the issuance of shares of Stock by the Company to employees, officers,
directors, advisors or consultants under any employee benefit plans described in the Pricing
Prospectus that do not become transferrable or result in the delivery of securities that become
transferrable during the Lock-Up Period, and (iv) with 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
15-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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. waives, in writing, such extension; the Company will
provide ▇▇▇▇▇▇▇, Sachs & Co. and each stockholder subject to the Lock-Up Period pursuant to the
lockup letters described in Section 8(i) with prior notice of any such announcement that gives rise
to an extension of the Lock-up Period;
(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 an independent registered public accounting firm) 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 that, any report or financial
statement that is filed by the Company and publicly available on the Commission’s ▇▇▇▇▇ system
within the applicable time requirements for the filing of such report under the Exchange Act shall
be deemed to have been timely furnished and delivered to the stockholders at the time furnished or
filed with the Commission;
(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 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 that, any report or financial statement that
is publicly available on the Commission’s ▇▇▇▇▇ system shall be deemed to have been furnished and
delivered to you at the time furnished or filed with the Commission;
(h) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(i) To use its best efforts to list, subject to notice of issuance, the Shares on the New York
Stock Exchange (the “Exchange”);
(j) 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
(k) 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., 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 ▇▇▇▇▇▇▇, Sachs & Co., 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 ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. is listed on Schedule II hereto;
(b) 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;
(c) 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 the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to ▇▇▇▇▇▇▇, Sachs & Co.
and, if requested by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., 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 information furnished in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein.
7. The Company covenants and 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 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
securities laws as provided in Section 5(b) hereof, including the reasonable fees and disbursements
of counsel for the Underwriters (including ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and any other counsel in any
non-U.S. jurisdiction) in connection with such qualification and in
connection with the Blue Sky survey and the foreign jurisdiction restrictions 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 Financial Industry Regulatory Authority 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) its pro rata portion of any costs associated with any
private jet used by the Company for travel in connection with any roadshow (it being understood
that the Underwriters will bear all other expenses incurred by the Underwriters in connection with
any roadshow, including travel, car and meeting venue expenses); and (ix) 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, 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 (including ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and any other
counsel in any non-U.S. jurisdiction), stock transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may make.
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 herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(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; 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) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated such Time of
Delivery, in form and substance reasonably satisfactory to you, with respect to such
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) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to you
their written opinion and 10b-5 letter, dated such Time of Delivery, in form and substance
reasonably satisfactory to you, to the effect set forth in Annex II(a) and Annex II(b)
hereto, respectively.
(d) ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, shall have furnished to you his
written opinion, dated such Time of Delivery, in form and substance reasonably satisfactory
to you, to the effect set forth in Annex II(c) 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 reasonably satisfactory to you,
to the effect set forth in Annex I hereto (the executed copy of the letter delivered prior
to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the form
of letter to be delivered on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as Annex I(b) hereto);
(f) (i) Neither the Company, nor any of its subsidiaries shall have sustained since
the date of the latest audited financial statements included or incorporated by reference
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 Pricing Prospectus there shall not have been any change in the capital stock,
or long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of the
Company and its subsidiaries, 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
your judgment 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;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities 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 any
of the Company’s debt securities;
(h) 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 your judgment 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;
(i) The Shares to be sold at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the Exchange; and
(j) The Company shall have obtained and delivered to the Underwriters executed copies
of an agreement from each executive officer and director of the Company substantially to
the effect set forth in Section 5(e) hereof in form and substance satisfactory to you;
(k) 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
(l) The Company shall have furnished or caused to be furnished to you at such Time of
Delivery certificates of officers of the Company satisfactory to you as to the accuracy of
the representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (f) of this Section and as to such other matters as you may reasonably request.
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 otherwise than as a result of a breach by an Underwriter of Section 6(a) hereof with
respect to 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company 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 ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company 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) or (b) 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; 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.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) 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 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 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 (c) 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 of the Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this subsection (d). 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 (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), 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 (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company 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 and to each person,
if any, who controls the Company within the meaning of the Act.
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 Company
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 Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for the purchase of
such Shares, you or the Company shall have the right to postpone such 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.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company 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 Company 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.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, or if the Company 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 Company
to sell the Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company 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 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 officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through you for all reasonable, documented
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 shall then be under no further liability to any
Underwriter 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of
you as the representative.
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
representative in care of ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Registration Department (fax number: (▇▇▇) ▇▇▇-▇▇▇▇); 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(c) 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 by you upon
request; provided, however, that notices under subsection 5(e) shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representative at ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Control Room (fax number: (▇▇▇) ▇▇▇-▇▇▇▇). Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the underwriters are required to
obtain, verify and record information that identifies their respective clients, including the
Company, which information may include the name and address of their respective clients, as well as
other information that will allow the underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company 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 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 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. 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.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant
to this Agreement is an arm’s-length commercial transaction between the Company, 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, (iii) no Underwriter has assumed an advisory or fiduciary responsibility
in favor of the Company 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
on other matters) or any other obligation to the Company except the obligations expressly set forth
in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the
extent it deemed appropriate. The Company agrees that it 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, in connection with such transaction or the process leading thereto.
17. 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.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York, without regard to the conflict of laws principles thereof.
19. 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.
20. 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.
21. Notwithstanding anything herein to the contrary, the Company is 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 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.
If the foregoing is in accordance with your understanding, please sign and return to us seven
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 between each of the
Underwriters and the Company. 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 for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
| Very truly yours, Artio Global Investors Inc. |
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Chief Financial Officer | |||
| By: | ||||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | General Counsel | |||
| ▇▇▇▇▇▇▇, Sachs & Co. |
||||
| By: | ||||
| (▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.) | ||||
| 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 | ||
▇▇▇▇▇▇▇, Sachs & Co.
|
||||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
||||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated |
||||
Total |
||||
SCHEDULE II
(a) Issuer Free Writing Prospectuses:
[None.]
[(b) Additional Documents Incorporated by Reference:]
ANNEX I
[Form of Comfort Letter]
Pursuant to Section 8(e) of the Underwriting Agreement, the accountants shall furnish letters
to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the Company and
its subsidiaries within the meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, financial forecasts and/or pro forma
financial information) examined by them and included or incorporated by reference in the
Prospectus or the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon, copies of which
have been furnished to the representative of the Underwriters (the “Representative”);
(iii) They have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company’s quarterly report on Form 10-Q incorporated
by reference in the Prospectus as indicated in their reports thereon copies of which have
been separately furnished to the Representative and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their attention that cause them to
believe that the unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Company for the five most recent fiscal
years included in the Prospectus and included or incorporated by reference in Item 6 of the
Company’s Annual Report on Form 10-K for the most recent fiscal year
I-1
agrees with the corresponding amounts (after restatements where applicable) in the
audited consolidated financial statements for such five fiscal years which were included or
incorporated by reference in the Company’s Annual Reports on Form 10-K for such fiscal
years;
(v) They have compared the information in the Prospectus under selected captions with
the disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in accordance
with generally accepted auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company’s Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange Act
and the related published rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included in
the Prospectus or included in the Company’s Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items included
in the Prospectus do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and items were derived, and
any such unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the Company’s Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
I-2
statements referred to in clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the basis for the
audited consolidated financial statements included or incorporated by reference in
the Company’s Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of the Act and
the published rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the date of such
letter, there have been any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the latest balance
sheet included or incorporated by reference in the Prospectus) or any increase in
the consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders’ equity or other items
specified by the Representative, or any increases in any items specified by the
Representative, in each case as compared with amounts shown in the latest balance
sheet included or incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements included
or incorporated by reference in the Prospectus to the specified date referred to in
clause (E) there were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net income or other items
specified by the Representative, or any increases in any items specified by the
Representative, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified by the
Representative, except in each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the
I-3
Representative, which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representative or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
I-4
ANNEX II(a)
[FORM OF DPW OPINION]
| 1. | The Company is validly existing as a corporation in good standing under the laws of the State of Delaware; Artio LLC has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware; and Artio Global Management LLC is validly existing as a limited liability company in good standing under the laws of the State of Delaware. The Company has corporate power and authority to issue the Shares, to enter into the Underwriting Agreement and to perform its obligations thereunder and to own its properties and conduct its business as described in the Pricing Prospectus and Prospectus. Each subsidiary of the Company has limited liability power and authority to own its properties and conduct its business as described in the Pricing Prospectus and Prospectus. | |
| 2. | The membership interests of Artio LLC have been duly authorized and validly issued. | |
| 3. | This Agreement has been duly authorized, executed and delivered by the Company. | |
| 4. | The Shares have been duly authorized and, when issued and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be validly issued, fully paid and non-assessable; and the issuance of such Shares is not subject to any statutory preemptive rights. | |
| 5. | The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Pricing Prospectus and Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. | |
| 6. | The Company’s authorized equity capitalization is as set forth in the Pricing Prospectus and the Prospectus. | |
| 7. | The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement will not contravene (i) any provision of the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Underwriting Agreement, or the General Corporation Law of the State of Delaware provided that we express no opinion as to federal or state securities laws, (ii) the certificate of incorporation or by-laws of the Company, or (iii) any agreement that is filed as an exhibit to the Registration Statement. | |
| 8. | No consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to |
| general business corporations in relation to transactions of the type contemplated by this Agreement, or the General Corporation Law of the State of Delaware is required for the execution, delivery and performance by the Company of its obligations under this Agreement, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion. | ||
| 9. | We have considered the statements included in the Prospectus under the caption “Description of Capital Stock” insofar as they summarize the provisions of the laws referred to therein, the certificate of incorporation and by-laws of the Company (the “Offering Summary”), under the caption “Underwriting” insofar as they summarize the provisions of the Underwriting Agreement (the “Underwriting Summary”), and under the caption “Material U.S. Federal Tax Considerations for non-U.S. Holders of our Class A Common Stock” (the “Tax Considerations Summary”). In our opinion, the Offering Summary and Underwriting Summary fairly summarize the above-mentioned provisions in all material respects, and the Tax Considerations Summary, insofar as it purports to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, fairly and accurately summarizes the matters referred to therein in all material respects. |
II(a)-2
ANNEX II(b)
[FORM OF DPW 10B-5 LETTER]
1. The Registration Statement and the Prospectus appear on their face to be
appropriately responsive in all material respects to the requirements of the Act and the
applicable rules and regulations of the Commission thereunder; and
2. Nothing has come to our attention that causes us to believe that:
a. the Registration Statement or the prospectus included therein at the time the
Registration Statement became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading,
b. at the Applicable Time, the Preliminary Prospectus, together with the number
of shares being sold and price per share to the public, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or
c. the Prospectus as of its date and as of the Time of Delivery contained or contains
any untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
II(b)-1
ANNEX II(c)
[FORM OF OPINION OF GENERAL COUNSEL]
| 1. | The Company (a) to my knowledge, has been duly incorporated and (b) is validly existing as a corporation in good standing under the laws of the State of Delaware. The Company 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, except where such failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect. | |
| 2. | Artio LLC has been duly qualified as a foreign limited liability company for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where such failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect. | |
| 3. | All of the issued shares of capital stock of the Company (including the Shares) have been duly and validly authorized and are fully paid and non-assessable. | |
| 4. | Except as otherwise set forth in the Pricing Prospectus and Prospectus, the membership interests of Artio LLC are owned directly or indirectly by the Company. | |
| 5. | To the best of my knowledge, and other than as set forth in the Pricing Prospectus and 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; and, to the best of my knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. | |
| 6. | Neither the Company nor any of its subsidiaries is (i) in violation of its certificate of incorporation or bylaws or other organizational documents, or (ii) in default in the performance or observance of any 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, except, in the case of clause (ii), for any default that would not, individually or in the aggregate, have a Material Adverse Effect. | |
| 7. | I do not know of any contracts or other documents of a character required to be described in the Registration Statement, Pricing Prospectus or the Prospectus which are not described as required. | |
| 8. | The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto, made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the |
II(c)-1
| requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and we have no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading. |
II(c)-2