Greenhill & Co., Inc. Common Stock, par value $0.01 per share Underwriting Agreement
Exhibit 1.1
EXECUTION COPY
Xxxxxxxxx & Co., Inc.
Common Stock, par value $0.01 per share
November 18, 2009
Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the “Selling Stockholders”) of Xxxxxxxxx &
Co., Inc., a Delaware corporation (the “Company”), propose, subject to the terms and conditions
stated herein, to sell to you (the “Underwriter”) an aggregate of 2,500,000 shares (the “Shares”)
of Common Stock, par value $0.01 per share (“Stock”), of the Company. References herein to “any
Underwriter”, “each Underwriter”, “each of the Underwriters”, “the Underwriters”, the “several
Underwriters” and similar terms shall be deemed in each instance to refer to Xxxxxxx, Sachs & Co.,
in its capacity as sole Underwriter pursuant hereto.
1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters
that:
(i) An “automatic shelf registration statement” as defined under Rule 405 under
the Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-
163166) in respect of the Shares has been filed with the Securities and Exchange
Commission (the “Commission”) not earlier than three years prior to the date hereof;
such registration statement, and any post-effective amendment thereto, became
effective on filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission, and no notice of
objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been
received by the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement, is hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares filed with the Commission pursuant to Rule 424(b)
under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of
such registration statement, including all exhibits thereto and including any
prospectus supplement relating to the Shares that is filed with the Commission and
deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “Registration Statement”;
the Basic Prospectus, as amended and supplemented immediately prior to the Applicable
Time (as defined in Section 1(a)(iii) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof is hereinafter called the “Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any prospectus supplement
relating to the Shares filed with the Commission pursuant to Rule 424(b) under the
Act and any documents filed under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and incorporated therein, in each case after the date of the
Basic Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration Statement that
is incorporated by reference in the Registration Statement; and any “issuer free
writing prospectus” as defined in Rule 433 under the Act relating to the Shares is
hereinafter called an “Issuer Free Writing Prospectus”);
(ii) No order preventing or suspending the use of any Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter expressly for use
therein or by a Selling Stockholder expressly for use in the preparation of the
Pricing Prospectus or the Prospectus;
(iii) For the purposes of this Agreement, the “Applicable Time” is 7:10 a.m.
(Eastern time) on the date of this Agreement. 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; and each
Issuer Free Writing Prospectus listed on Schedule V 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
2
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 the Underwriter expressly for use therein;
(iv) 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
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; any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; 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 the Underwriter
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 may be set
forth on Schedule V(c) hereto;
(v) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or 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 the Registration Statement and any amendment thereto
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 the Underwriter
expressly for use therein or by a Selling Stockholder expressly for use in the
preparation of the Pricing Prospectus or the Prospectus;
(vi) 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 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, except for such loss or interference
as would not, individually or in the aggregate, have a material adverse effect on the
general affairs, management, financial position, stockholders’ equity or results of
operations of
3
the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”);
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 consolidated 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;
(vii) The Company and its Significant Subsidiaries (as defined below) have good
and marketable title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as 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
Significant Subsidiaries; and any real property and buildings held under lease by the
Company and its Significant 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 Significant Subsidiaries;
(viii) 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 Prospectus, and has been duly qualified as a foreign corporation
(either under its name or a fictitious name) for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(ix) The Company has no “significant subsidiaries”, as defined in Rule 1-02(w)
of Regulation S-X, that are not set forth in Exhibit 21.1 to the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2008; each of Xxxxxxxxx &
Co., LLC, a New York limited liability company (“Greenhill U.S.”), Xxxxxxxxx & Co.
Europe LLP, a limited liability partnership organized in England and Wales
(“Greenhill Europe”), Xxxxxxxxx & Co. International LLP, a limited liability
partnership organized in England and Wales (“Greenhill International”), Xxxxxxxxx
Capital Partners, LLC, a Delaware limited liability company (the “U.S. Manager”), and
each other “significant subsidiary” of the Company, as defined in Rule 1-02(w) of
Regulation S-X (each a “Significant Subsidiary”, and all references in this Agreement
to the subsidiaries of the Company shall be deemed to include, without limitation,
the Significant Subsidiaries unless the context otherwise requires), has been duly
formed or organized and is validly existing as a limited liability company or
partnership (and, to the extent such concept is applicable, is in good standing)
under the laws of its jurisdiction of formation or organization; and each subsidiary
of the Company other than the Significant Subsidiaries has been duly formed,
incorporated or organized and is validly existing as a limited liability company,
corporation or partnership (and, to the extent
4
such concept is applicable, is in good standing) under the laws of its
jurisdiction of formation, incorporation or organization, except to such extent as
would not, individually or in the aggregate, have a Material Adverse Effect or
interfere materially with the consummation of the transactions contemplated in this
Agreement;
(x) The Company has an authorized capitalization as set forth in the Pricing
Prospectus and the Prospectus, all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Stock contained in the Pricing
Prospectus and the Prospectus; all of the membership interests or partnership
interests of each Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims; except to
such extent as would not, individually or in the aggregate, have a Material Adverse
Effect, all of the issued shares of capital stock, membership interests or
partnership interests of each subsidiary of the Company other than the Significant
Subsidiaries have been duly and validly authorized and issued, are fully paid and
(except, in the case of any such subsidiary that is a general partner, for any
liability it may incur in its capacity as a general partner under applicable law) are
non-assessable and are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims; and neither the Company nor any
subsidiary of the Company is subject to any capital call or similar obligation,
directly or indirectly, pursuant to the partnership agreements relating to Greenhill
Capital Partners, L.P., Greenhill Capital Partners (Cayman), L.P., Greenhill Capital
Partners (Executives), L.P., Greenhill Capital, L.P., Greenhill Capital Partners II,
L.P., Greenhill Capital Partners (Cayman) II, L.P., Greenhill Capital Partners
(Executives) II, L.P., Greenhill Capital Partners (Employees) II, L.P., Greenhill
SAVP (N.Y.), L.P., Greenhill SAVP (Associates), L.P., Greenhill SAVP, L.P., GCP
Europe, Greenhill Capital Partners Europe, L.P., Greenhill Capital Partners Europe
(Employees), L.P. and Parallel Private Equity Xxxxxxxxx X.X. (together, the “Merchant
Banking and Venture Capital Funds”), except, in the case of GCP, L.P., a Delaware
limited partnership (the “Original General Partner”), GCP Managing Partner, L.P., a
Delaware limited partnership (the “GCP I Managing General Partner”), GCP Managing
Partner II, L.P. a Delaware limited partnership (the “GCP II Managing General
Partner”), GSAVP G.P., L.P., a Delaware limited partnership, GCP Europe General
Partnership, L.P., a Scottish limited partnership (the “GCPE General Partner I”) and
GCP Europe General Partnership II L.P., a Scottish limited partnership (the “GCPE
General Partner II” and, together with the Original General Partner, GCP I Managing
General Partner, GCP II Managing General Partner, GSAVP G.P., L.P. and GCPE General
Partner I, the “Managing General Partners”), for (i) any liabilities they may incur
in their capacity as general partners under applicable law and (ii) any obligations
to make additional capital contributions pursuant to their general partnership
agreements or any partnership agreements relating to the Merchant Banking and Venture
Capital Funds.
(xi) The sale of the Shares by the Selling Stockholders, and the compliance by
the Company with all of the provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any
indenture,
5
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except for such conflicts, breaches or
violations as have been duly waived or would not, individually or in the aggregate,
have a Material Adverse Effect or interfere with the consummation of the transactions
contemplated by this Agreement, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company, any statute
or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties;
(xii) Neither the Company nor any of its subsidiaries is (a) in violation of
its Certificate of Incorporation, By-laws or other organizational documents or (b) in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound except, in the case of (b), for such
defaults as would not, individually or in the aggregate, have a Material Adverse
Effect or interfere materially with the consummation of the transactions contemplated
by this Agreement;
(xiii) 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 Stock and in the Prospectus under the captions “Certain
Material U.S. Federal Tax Consequences” and “Underwriting”, insofar as they purport
to describe the provisions of the laws and documents referred to therein and subject
to the conditions and limitations expressly set forth therein, fairly and accurately
summarize the matters referred to therein in all material respects;
(xiv) 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 interfere
with the consummation of the transactions contemplated by this Agreement; and, to the
best of the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(xv) The Company is not and, after giving effect to the offering and sale of
the Shares, will not be an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(xvi) (A) (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form
of prospectus), and (iii) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) under the Act) made any
offer relating to the Shares in reliance on the exemption of Rule 163 under the Act,
the Company was
6
a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at
the earliest time after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Act) of the Shares, the Company was not an “ineligible issuer” as
defined in Rule 405 under the Act;
(xvii) To its knowledge, neither the Company nor any of its affiliates does
business with the government of, or with any person (a “Sanctioned Person”) located
in, any country targeted by any of the economic sanctions programs or similar
sanctions-related measures of the United States as administered by the United States
Treasury Department’s Office of Foreign Assets Control (“OFAC”), and none of the
Selling Stockholders is a Sanctioned Person;
(xviii) No consent, approval, authorization, order, registration,
qualification, permit, license, exemption, filing or notice (each, an
“Authorization”) of, from, with or to any Federal, state or foreign government,
governmental or regulatory authority, self-regulatory organization or court or other
tribunal (each, an “Official Body”) is required for the sale of the Shares or the
consummation of the transactions contemplated by this Agreement, except (i) the
registration of the Shares under the Act and the Exchange Act, and (ii) such
Authorizations as may be required under state or foreign securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the Underwriters;
and no event has occurred (including the receipt of any notice from any Official
Body) that allows or results in, or after notice or lapse of time or both would allow
or result in, revocation, suspension, termination or invalidation of any such
Authorization or any other impairment of the rights of the holder or maker of any
such Authorization;
(xix) All corporate, partnership and limited liability company approvals
(including those of stockholders, partners or members) necessary for the Company to
consummate the transactions contemplated in this Agreement have been obtained and are
in effect;
(xx) All partnership and third party approvals required under any partnership
agreement of the Merchant Banking and Venture Capital Funds binding on the Company or
any of its affiliates on the date hereof, and all amendments of any such agreement or
assignments of rights thereunder necessary to permit the Company, directly or
indirectly, through one or more of its affiliates, to conduct its merchant banking
and venture capital fund management business as set forth in the Pricing Prospectus
and Prospectus (including the right to receive management fees and profit overrides
and make investments) have been obtained or made in conformity with the provisions of
such partnership agreements;
(xxi) Each of the Company and its subsidiaries has obtained or made all
Authorizations from, to or with all Official Bodies as are required to conduct their
respective businesses as described in the Pricing Prospectus and Prospectus, except
for such Authorizations the absence of which, individually or in the aggregate, would
not result in a Material Adverse Effect, and no event has occurred (including the
receipt of any notice from any Official Body) that allows or results in, or after
notice or lapse of
7
time or both would allow or result in, revocation, suspension, termination or
invalidation of any such Authorization or any other impairment of the rights of the
holder or maker of any such Authorization, except for such events as would not,
individually or in the aggregate, result in a Material Adverse Effect; each of the
Company and its subsidiaries are members in good standing of each Federal, state or
foreign exchange, board of trade, clearing house or association and self-regulatory
or similar organization, in each case as necessary to conduct their respective
businesses as described in the Pricing Prospectus and Prospectus, except to such
extent as would not, individually or in the aggregate, have a Material Adverse Effect
or interfere materially with the consummation of the transactions contemplated in
this Agreement; other than the U.S. Manager, neither the Company nor any of its
Significant Subsidiaries is required to register as an investment adviser under the
Investment Advisers Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (the “Investment Advisers Act”); and, each of the U.S.
Manager’s “investment adviser representatives” (within the meaning of Rule 203A-3(a)
under the Investment Advisers Act, if any, has obtained all Authorizations necessary
under the law of any state in which the U.S. Manager has a “place of business”
(within the meaning of Rule 203A-3(b) under the Investment Advisers Act);
(xxii) No holders of securities of or other interests in the Company have any
preemptive rights to acquire any securities of or other interests in the Company, or
any rights to the registration of any securities or other interests under the
Registration Statement (other than any rights arising under the Transfer Rights
Agreement, dated on or about May 11, 2004, as amended, or dated July 6, 2006, as
applicable, between the Company and each of the Selling Stockholders, and all of
which rights that have vested as of the date hereof will have been satisfied by the
execution and delivery of this Agreement by the Company and the Underwriters);
(xxiii) Ernst & Young LLP, who have audited certain financial statements of the
Company and its consolidated subsidiaries, and have audited the Company’s internal
control over financial reporting, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder;
(xxiv) 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. As of the date of the
latest audited financial statements included or incorporated by reference in the
Pricing Prospectus, the Company’s internal control over financial reporting was
effective and the Company was not aware of any material weaknesses in its internal
control over financial reporting;
(xxv) 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
8
reasonably likely to materially affect, the Company’s internal control over
financial reporting; and
(xxvi) The Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) of the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have been designed to
ensure that material information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and principal financial officer by
others within those entities; such disclosure controls and procedures are effective.
(b) Each of the Selling Stockholders severally represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for the
execution and delivery by such Selling Stockholder of this Agreement and the
Power-of-Attorney and the Custody Agreement hereinafter referred to, and for the sale
and delivery of the Shares to be sold by such Selling Stockholder hereunder, have
been obtained; and such Selling Stockholder has full right, power and authority to
enter into this Agreement, the Power-of-Attorney and the Custody Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder;
(ii) The sale of the Shares to be sold by such Selling Stockholder hereunder,
the application of the proceeds received by such Selling Stockholder therefrom and
the compliance by such Selling Stockholder with all of the provisions of this
Agreement, the Power of Attorney and the Custody Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of such Selling Stockholder
if such Selling Stockholder is a corporation, the Partnership Agreement of such
Selling Stockholder if such Selling Stockholder is a partnership or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such Selling
Stockholder, except for such conflicts, breaches or violations as have been duly
waived or would not, individually or in the aggregate, have a Material Adverse Effect
or interfere with the consummation of the transactions contemplated by this
Agreement; and, in the case of a Selling Stockholder who is not a “U.S. person” as
defined by the relevant regulations promulgated by OFAC, the proceeds from this
offering will not be used to fund any operations in, finance any investments in or
make any payments to any country, or to make any payments to any person, targeted by
any of the economic sanctions of the United States administered by OFAC.
(iii) Such Selling Stockholder has, and immediately prior to the Time of
Delivery (as defined in Section 4(a) hereof) such Selling Stockholder will have, good
and valid
9
title to the Shares to be sold by such Selling Stockholder hereunder, free and
clear of all liens, encumbrances, equities or claims;
(iv) Upon payment for the Shares to be sold by the Selling Stockholders as
provided in this Agreement, and the crediting of such Shares on the records of The
Depository Trust Company (“DTC”) to securities accounts in the name of the
Underwriters, (A) DTC shall be a “protected purchaser” (within the meaning of Section
8-303 of the Uniform Commercial Code as in effect in the State of New York (the
“Code”)), (B) the Underwriters will acquire a valid “security entitlement” (within
the meaning of Section 8-501 of the Code) in respect of such Shares and (C) no action
based on any “adverse claim” (within the meaning of Section 8-102 of the Code) to
such Shares may be asserted against the Underwriters with respect to such security
entitlement (it being assumed that for the purposes of this representation and
warranty that when such payment, delivery and crediting occur, (x) such Shares will
have been registered in the name of Cede & Co. (“Cede”) or another nominee designated
by DTC, in each case on the Company’s share registry in accordance with its
Certificate of Incorporation, By-Laws and applicable law, (y) DTC will be registered
as a “clearing corporation” within the meaning of Section 8-102 of the Code and (z)
appropriate entries to the account(s) of the Underwriters on the records of DTC will
have been made pursuant to the Code);
(v) During the period beginning from the date hereof and continuing through
June 30, 2010, not to offer, sell, contract to sell or otherwise dispose of, directly
or indirectly, except as provided hereunder, any Stock or any other securities of the
Company that are substantially similar to the Stock, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the right
to receive, Stock or any such other substantially similar securities, whether now
owned or hereafter acquired, owned directly by such Selling Stockholder (including
holding as a custodian) or with respect to which such Selling Stockholder has
beneficial ownership within the rules and regulations of the Commission, or any
hedging or other transaction which is designed to or which reasonably could be
expected to lead to or result in a sale or disposition of such Selling Stockholder’s
Stock, even if such Stock would be disposed of by someone other than such Selling
Stockholder, without your prior written consent; provided, however, such Selling
Stockholder may transfer such Stock (i) as a bona fide gift or gifts, provided that
the donee or donees thereof agree to be bound in writing by the restrictions set
forth herein, (ii) to any trust for the direct or indirect benefit of such Selling
Stockholder or the immediate family of such Selling Stockholder, provided that the
trustee of the trust agrees to be bound in writing by the restrictions set forth
herein, and provided further that any such transfer shall not involve a disposition
for value or (iii) to the Company to satisfy any tax liability due upon the receipt
of any Stock under the Company’s employee incentive plans. For purposes hereof,
“immediate family” shall mean any relationship by blood, marriage or adoption, not
more remote than first cousin. In addition, notwithstanding the foregoing, if such
Selling Stockholder is an entity, such entity may transfer the capital stock of the
Company to any wholly-owned subsidiary of such entity; provided, however, that in any
such case, it shall be a condition to the transfer that the transferee execute an
agreement stating that the transferee is receiving and holding such capital stock
subject to the provisions of this Agreement and there shall be no further transfer of
such capital stock except in accordance with this
10
Agreement, and provided further that any such transfer shall not involve a
disposition for value;
(vi) Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Shares;
(vii) To the extent that any statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder expressly
for use therein, such Registration Statement, Pricing Prospectus and Preliminary
Prospectus did, and the Prospectus and any further amendments or supplements to the
Registration Statement, Pricing Prospectus and Prospectus, when they become effective
or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading;
(viii) In order to document the Underwriters’ compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with
respect to the transactions herein contemplated, such Selling Stockholder will
deliver to you prior to or at the Time of Delivery (as hereinafter defined) a
properly completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in lieu
thereof);
(ix) All of the Shares to be sold by such Selling Stockholder hereunder have
been placed in custody under a Custody Agreement, in the form heretofore furnished to
you (the “Custody Agreement”), duly executed and delivered by such Selling
Stockholder to American Stock Transfer & Trust Company, as custodian (the
“Custodian”), such Selling Stockholder has otherwise furnished to the Custodian, to
the extent applicable, the documents described in clauses (a), (b) and (c) in the
third paragraph of the Custody Agreement, and such Selling Stockholder has duly
executed and delivered a Power of Attorney, in the form heretofore furnished to you
(the “Power of Attorney”), appointing the persons indicated in Schedule III hereto,
and each of them, as such Selling Stockholder’s attorneys-in-fact (the
“Attorneys-in-Fact”) with authority to execute and deliver this Agreement on behalf
of such Selling Stockholder, to determine the purchase price to be paid by the
Underwriters to the Selling Stockholders as provided in Section 2 hereof, to
authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder
and otherwise to act on behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Custody Agreement; and
(x) The Shares held in custody for such Selling Stockholder under the Custody
Agreement are subject to the interests of the Underwriters hereunder; the
arrangements made by such Selling Stockholder for such custody, and the
11
appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of
Attorney, are to that extent irrevocable; the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the case of an estate or
trust, by the death or incapacity of any executor or trustee or the termination of
such estate or trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the occurrence of any other
event; if any individual Selling Stockholder or any such executor or trustee should
die or become incapacitated, or if any such estate or trust should be terminated, or
if any such partnership or corporation should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder, the Shares shall be
delivered by or on behalf of the Selling Stockholders in accordance with the terms
and conditions of this Agreement and of the Custody Agreements; and actions taken by
the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such
death, incapacity, termination, dissolution or other event had not occurred,
regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them,
shall have received notice of such death, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees to purchase from each of the Selling Stockholders, at a purchase price per
share of $82.536, the number of Shares to be sold by such Selling Stockholder as set forth opposite
such Selling Stockholder’s name in Schedule II.
3. Upon the authorization by you of the release of the Shares, the several Underwriters
propose to offer the Shares for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder shall be delivered by or on
behalf of the Selling Stockholders to Xxxxxxx, Xxxxx & Co. 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(s) specified by any Attorney-in-Fact and the Custodian
to Xxxxxxx, Sachs & Co. at least forty-eight hours in advance. The time and date of such delivery
and payment shall be approximately 11:00 a.m., New York time, on November 23, 2009 or such other
time and date as Xxxxxxx, Xxxxx & Co. and any Attorney-in-Fact may agree upon in writing (the “Time
of Delivery”).
(b) The documents to be delivered at the 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(o) hereof,
will be delivered at the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the “Closing Location”). A meeting will be held at the Closing Location at
6:00 p.m., New York City time, on the New York Business Day next preceding the 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
are generally authorized or obligated by law or executive order to close.
12
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form agreed to by you and the Company and to file
such Prospectus 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; to make no further
amendment or any supplement to the Registration Statement, the Basic Prospectus or the
Prospectus prior to the Time of Delivery which shall reasonably 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 other material required to be filed
by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly
all reports and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required in connection with the offering or sale of the Securities; 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 prospectus, 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
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
prospectus or suspending any such qualification, promptly to 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 reasonably 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) As soon as practicable on the New York Business Day next succeeding the date of
this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection with the offering or
sale of the Shares and if at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for any other reason it shall be necessary during such period to amend
or supplement the Prospectus or to file under the Exchange Act any document incorporated by
reference in the
13
Prospectus in order to comply with the Act or the Exchange 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 through June 30,
2010, not to offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any Stock or other securities of the Company that are substantially similar to
the Stock, including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such other
substantially similar securities (other than pursuant to employee incentive plans existing
on, or upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior written consent;
provided that the Company may issue Stock or other securities of the Company that are
substantially similar to the Stock in connection with the acquisition by the Company of a
business or businesses;
(f) Unless otherwise publicly available in electronic format on the website of the
Company or the Commission, to furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and statements of
income, stockholders’ equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon as practicable after
the end of each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement), to make available
to its stockholders consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the Registration
Statement, unless otherwise publicly available in electronic form on the Commission’s
website, 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
14
the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(h) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(i) Upon request of any Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate
logo for use on the website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the Shares (the “License”); provided, however, that
the License shall be used solely for the purpose described above, is granted without any
fee and may not be assigned or transferred.
6. (a) Each of the Company and each Selling Stockholder represents and agrees that, without
the prior consent of Xxxxxxx, Sachs & 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 Xxxxxxx,
Xxxxx & 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 Xxxxxxx, Sachs & Co., is listed on Schedule V(a) or (b) 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; and
(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, as supplemented by and taken together with the Pricing
Prospectus, 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 Xxxxxxx, Xxxxx & Co. and, if requested by Xxxxxxx, Sachs & 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 the Underwriter expressly for use therein.
7. Each of the Selling Stockholders severally covenants and agrees with the Company, with each
other Selling Stockholder and with the several Underwriters that such Selling Stockholder will pay
or cause to be paid a pro rata share (based on the number of Shares sold by such Selling
Stockholder pursuant to this Agreement) of 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
15
Act and all other expenses in connection with the preparation, printing and filing of the
Registration Statement, the Basic Prospectus, 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, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) the filing fees incident to securing any required review by the Financial
Industry Regulatory Authority, Inc. (“FINRA”) of the terms of the sale of the Shares; (iv) the cost
of preparing stock certificates, if any; (v) the cost and charges of any transfer agent or
registrar and all other costs and expenses incident to the performance of the obligations of the
Company and such Selling Stockholder hereunder which are not otherwise specifically provided for in
this Section; and (vi) to the extent any New York State transfer tax is imposed on the Underwriters
in connection with the offering of the Shares as contemplated by this agreement, any New York State
transfer taxes so imposed. It is understood, however, that except as provided in this Section, and
Sections 9 and 10 hereof, the Underwriters will pay all of their own costs and expenses incident to
the transactions contemplated herein, including the fees of their counsel (including the fees and
disbursements of such counsel incurred in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b) hereof and in connection
with any Blue Sky survey and the fees and disbursements of such counsel in connection with securing
any required review by FINRA of the terms of the sale of the Shares), 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 shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the Company and of the
Selling Stockholders herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholders shall have performed all of its and their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
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 filings by Rule 433; if
the Company has elected to rely upon Rule 462(b), 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 and no notice of objection of the Commission to
the use of the Registration Statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act shall have been received; 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) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated the Time of Delivery, in form and substance
satisfactory to you, with respect to the matters covered in paragraphs (i), (ii) and (v)
and the paragraph immediately following paragraph (ix) of subsection (c) below as well as
such other
16
related matters as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to you
their written opinion (a draft of such opinion is attached as Annex II(a) hereto), in form
and substance satisfactory to you, dated the Time of Delivery, to the effect that:
(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, and the Company
has corporate power and authority to own its properties and conduct its business as
described in the Pricing Prospectus and the Prospectus;
(ii) The Company’s authorized equity capitalization is as set forth in the
Pricing Prospectus and Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares being delivered at the Time of Delivery) have been
duly and validly authorized and issued and are fully paid and non-assessable; and the
Shares conform to the description of the Stock contained in the Pricing Prospectus
and Prospectus;
(iii) The Company has been duly qualified as a foreign corporation (either
under its name or a fictitious name) for the transaction of business and is in good
standing under the laws of the State of New York;
(iv) Xxxxxxxxx U.S. has been duly formed or organized and is validly existing
as a limited liability company in good standing under the laws of the State of New
York; and all of the limited liability company membership interests of Xxxxxxxxx U.S.
have been duly and validly authorized and issued and, to the best of such counsel’s
knowledge, are owned directly or indirectly by the Company, in each case free and
clear of all liens, encumbrances, equities or claims (such counsel being entitled to
rely in respect of matters of fact upon certificates of officers of the Company or
its subsidiaries);
(v) This Agreement has been duly authorized, executed and delivered by the
Company;
(vi) To the best of such counsel’s knowledge, no Authorization is required to
be obtained or made by the Company or any of its subsidiaries from, to or with any
Official Body under U.S. federal law, the law of the State of New York or the General
Corporation Law of Delaware that in such counsel’s experience is normally applicable
to general business entities in relation to transactions of the type contemplated by
this Agreement for the sale of the Shares or the consummation of the transactions
contemplated by this Agreement, except for (i) the registration of the Shares under
the Act, (ii) such Authorizations the absence of which would not have a Material
Adverse Effect or interfere materially with the consummation of the transactions
contemplated by this Agreement and (iii) such Authorizations as may be required under
state securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters;
17
(vii) The statements relating to legal matters or documents set forth in each
of the Pricing Prospectus and Prospectus under the captions “Description of Capital
Stock” and in the Prospectus under the caption “Certain Material U.S. Federal Income
Tax Consequences”, insofar as they purport to describe the provisions of the laws and
documents referred to therein, fairly summarize in all material respects such matters
or documents;
(viii) The Company is not, and after giving effect to the offering and sale of
the Shares will not be, an “investment company” as such term is defined in the
Investment Company Act; and
(ix) The U.S. Manager is duly registered as an investment adviser under the
Investment Advisers Act.
Such counsel shall also state that they are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements contained in
the Registration Statement, the Pricing Prospectus or the Prospectus, and have not
themselves checked the accuracy, completeness or fairness of, or otherwise verified, the
information furnished in such documents (except as referred to in subsection (vii) of this
Section 8(c); however, in the course of our acting as counsel to the Company in connection
with the preparation of the Registration Statement, the Pricing Prospectus and the
Prospectus; they have generally reviewed and discussed with your representatives and your
counsel and with certain officers and employees of, and independent public accountants for,
the Company, the information furnished, whether or not subject to such counsel’s check and
verification; they have also reviewed and relied upon certain corporate records and
documents, letters from counsel and accountants and oral and written statements of officers
and other representatives of the Company and others as to the existence and consequence of
certain factual and other matters; on the basis of the information gained in the course of
the performance of the services rendered above, but without independent check or
verification except as stated above, (i) in such counsel’s opinion, the Registration
Statement, the Pricing Prospectus 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 (ii) nothing has come to
such counsel’s attention that causes them to believe that (a) the Registration Statement, on
the date of this Agreement, 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) as of the Applicable Time, the Pricing Prospectus (which shall
be deemed to include the number of shares set forth on the cover page of the Prospectus)
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 or as of the date
hereof 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. In addition, such counsel
expresses no opinion or belief as to the conveyance of the Pricing Prospectus (which shall
be deemed to include the number of shares set forth on the cover page of the Prospectus) or
the information contained therein to investors.
18
In rendering such opinion, such counsel may state that they have not been called to
pass upon, and they express no view as to, the financial statements or financial schedules
or other financial data included or incorporated by reference in the Registration Statement,
the Pricing Prospectus or the Prospectus and that they express no opinion as to the laws of
any jurisdiction other than the federal laws of the United States of America, the laws of
the State of New York and the General Corporation Law of the State of Delaware. Such
counsel may assume that any registration statement filed pursuant to Rule 462(b) became
effective prior to the time that any sale of the Shares was confirmed by the Underwriters
and such counsel may state that it is outside counsel and that its knowledge of the matters
covered in paragraphs (iv), (vii) and (viii) is necessarily limited. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied upon
certificates of officers of Greenhill and its subsidiaries, certificates of public officials
and other sources.
(d) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, regulatory counsel for Greenhill U.S.,
shall have furnished to you their written opinion (a draft of such opinion is attached as
Annex II(b) hereto), in form and substance satisfactory to you, dated the Time of Delivery,
to the effect that:
(i) Greenhill U.S. is duly registered as a broker-dealer under the Exchange Act
and the rules and regulations promulgated by the Commission thereunder and is a
member of the NASD; and
(ii) Greenhill U.S. is duly licensed, registered or qualified as a
broker-dealer in all fifty (50) states and the District of Columbia.
(e) Macfarlanes, English counsel to Greenhill International, shall have furnished to
you their written opinion (a draft of such opinion is attached as Annex II(c) hereto), in
form and substance satisfactory to you, dated the Time of Delivery, to the effect that:
(i) Greenhill International is a limited liability partnership duly
incorporated and existing under the laws of England and Wales; and
(ii) Greenhill International is duly authorized by the Financial Services
Authority (the “FSA”) to conduct the following business (all as defined by the FSA):
(A) to advise on investments (excluding pension transfers and pension opt outs), (B)
to agree to carry on a regulated activity, (C) to arrange deals in investments, and
(D) to make arrangements with a view to transactions in investments; no additional
Authorizations from, to or with the FSA or any other Official Body in the United
Kingdom are required to be obtained or made in order for Greenhill International to
conduct its investment businesses as described in the Prospectus;
(f) Hengeler Xxxxxxx, German counsel to Greenhill International, shall have furnished
to you their written opinion in the form attached as Annex II(d) hereto, dated the Time of
Delivery, to the effect that:
(i) To the best of such counsel’s knowledge, Greenhill Europe has all
Authorizations that are required to be obtained or made under the law of Germany in
order for it to conduct its business in Germany as described in the Prospectus.
19
(g) Xxxxxx Xxxxx, General Counsel of the Company, shall have furnished to you her
written opinion (a draft of such opinion is attached as Annex II(e) hereto), in form and
substance satisfactory to you, dated the Time of Delivery, to the effect that:
(i) To the best of such counsel’s knowledge and other than as set forth in the
Pricing Prospectus and the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which any
property 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 such counsel’s
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(ii) The sale of the Shares by the Selling Stockholders and the compliance by
the Company with all of the provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, except for
such conflicts, breaches or violations as have been duly waived or would not,
individually or in the aggregate, have a Material Adverse Effect or interfere with
the consummation of the transactions contemplated by this Agreement, nor will such
action result in any violation of the provisions of the Certificate of Incorporation
or By-laws of the Company or any provision of U.S. federal law, New York state law,
or the General Corporation Law of the State of Delaware that in such counsel’s
experience is normally applicable to general business entities in relation to the
transactions contemplated by this Agreement or any order, rule or regulation known to
such counsel of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and
(iii) Neither the Company nor any of its subsidiaries is (a) in violation of
its Certificate of Incorporation or By-laws (or other organizational documents) or
(b) in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, or lease or agreement or other instrument to which it is a party or
by which it or any of its properties is bound except, in the case of (b), for such
defaults as would not, individually or in the aggregate, have a Material Adverse
Effect or interfere materially with the consummation of the transactions contemplated
by this Agreement.
Such counsel shall also state that she has not herself checked the accuracy,
completeness or fairness of, or otherwise verified, the information furnished with respect
to other matters in the Registration Statement, the Pricing Prospectus or the Prospectus;
she has generally reviewed and discussed with your representatives and with certain officers
and employees of, and counsel and independent public accountants for, the Company, the
information furnished, whether or not subject to such counsel’s check and verification; on
the basis of such consideration, review and discussion, but without independent check or
20
verification, (i) in such counsel’s opinion, the Registration Statement, the Pricing
Prospectus 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 (ii) nothing has come to such counsel’s attention that causes
her to believe that (a) any part of the Registration Statement, at the time such part 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) as of the Applicable Time, the Pricing Prospectus (which shall be deemed to
include the number of shares set forth on the cover page of the Prospectus) 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 or as of the date hereof
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. In addition, such counsel
expresses no opinion or belief as to the conveyance of the Pricing Prospectus (which shall
be deemed to include the number of shares set forth on the cover page of the Prospectus) or
the information contained therein to investors.
In rendering such opinion, such counsel may state that she has not been called to pass
upon, and expresses no opinion or belief as to, the financial statements or financial
schedules or other financial data included or incorporated by reference in the Registration
Statement, the Pricing Prospectus or the Prospectus and that she expresses no opinion as to
the laws of any jurisdiction other than the federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State of Delaware.
Such counsel may assume that any registration statement filed pursuant to Rule 462(b) became
effective prior to the time that any sale of the Shares was confirmed by the Underwriters.
Such counsel may also state that, insofar as such opinion involves factual matters, she has
relied upon certificates of officers of Greenhill and its subsidiaries, certificates of
public officials and other sources.
(h) Xxxxx Xxxx & Xxxxxxxx LLP shall have furnished to you its written opinion with
respect to each of the Selling Stockholders (a draft of such opinion is attached as Annex
II(f) hereto), dated the Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) Assuming due authorization by each Selling Stockholder of a
Power-of-Attorney and a Custody Agreement under applicable law, such
Power-of-Attorney and such Custody Agreement have been duly executed and delivered by
each Selling Stockholder who is identified on Schedule IV (the “Schedule IV Selling
Stockholders”) and constitute valid and binding agreements of such Selling
Stockholder in accordance with their terms;
(ii) Assuming due authorization by each Schedule IV Selling Stockholder of this
Agreement under applicable law, this Agreement has been duly executed and delivered
by or on behalf of each Schedule IV Selling Stockholder; and
(iii) Upon payment for the security entitlement in respect of the Shares to be
sold by each Selling Stockholder to each of the several Underwriters as provided in
the
21
Underwriting Agreement and the crediting of such Shares on the records of DTC to
a security account or security accounts in the name of such Underwriter (assuming
that such Underwriter does not have notice of any adverse claim (as such phrase is
defined in Section 8-105 of the Code) to such Shares or any security entitlement in
respect thereof), (A) under Section 8-501 of the Code, such Underwriter will acquire
a security entitlement in respect of such Shares and (B) to the extent governed by
Article 8 of the Code, no action based on any “adverse claim” (as defined in Section
8-102 of the Code) to such Shares may be asserted against such Underwriter; it being
understood that for purposes of this opinion, we have assumed that when such payment
and crediting occur, (x) such Shares will have been registered in the name of Cede or
such other nominee as may be designated by DTC, in each case on the Company’s share
registry in accordance with its certificate of incorporation, bylaws and applicable
law, (y) DTC will be registered as a “clearing corporation” within the meaning of
Section 8-102 of the Code and (z) appropriate entries to the securities account or
accounts in the name of such Underwriter on the records of DTC will have been made
pursuant to the Code.
(i) 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 the
Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated
the respective dates of delivery thereof, in form and substance satisfactory to you (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 the Time of
Delivery is attached as Annex I(b) hereto);
(j) (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 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
Prospectus, and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock 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 Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of Xxxxxxx, Xxxxx & Co. so
material and adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner contemplated in the
Prospectus;
(k) The Company has obtained and delivered to the Underwriters executed copies of an
agreement from each of Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Key and Xxxxxx X.
Xxxxxxx, substantially to the effect set forth in Subsection 1(b)(v) hereof in form and
substance satisfactory to you;
22
(l) 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 New York Stock Exchange (the “Exchange”); (ii) a suspension or material limitation in
trading in the Company’s securities on the Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance services in
the United States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war or (v) the
occurrence of any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of Xxxxxxx, Xxxxx & Co. makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Shares on the terms and in the manner contemplated in the Prospectus;
(m) The Shares at the Time of Delivery shall have been duly listed on the Exchange;
(n) 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
(o) The Company and the Selling Stockholders shall have furnished or caused to be
furnished to you at the Time of Delivery certificates of officers of the Company and of the
Selling Stockholders, respectively, satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling Stockholders, respectively,
herein at and as of the Time of Delivery, as to the performance by the Company and the
Selling Stockholders of all of their respective obligations hereunder to be performed at or
prior to the Time of Delivery, and as to such other matters as you may reasonably request,
and the Company shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (j) of this Section.
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, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Act or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in any Registration Statement, the Basic Prospectus, 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
the Underwriter expressly for use therein.
23
(b) Each of the Selling Stockholders 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 Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or
any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act
or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or
issuer information in reliance upon and in conformity with written information furnished to
the Company by such Selling Stockholder expressly for use therein; and will reimburse each
Underwriter 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 such Selling Stockholder shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged omission made in
Registration Statement, the Basic Prospectus, 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 the Underwriter expressly for use therein; and provided, further, that the
liability of a Selling Stockholder shall not exceed the product of (i) the number of Shares
sold by such Selling Stockholder and (ii) the per share purchase price set forth in Section
2 hereof.
(c) Each Underwriter will indemnify and hold harmless the Company and each Selling
Stockholder against any losses, claims, damages or liabilities to which the Company or such
Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, 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, the Basic Prospectus, 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 the Underwriter expressly for use therein; and will reimburse the Company and
each Selling Stockholder for any legal or other expenses reasonably incurred by the Company
or such Selling Stockholder in connection with investigating or defending any such action or
claim as such expenses are incurred.
24
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c)
above of notice of the commencement of any action, such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; 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 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.
(e) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (d) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Selling Stockholders bear to the financial benefit received by the
Underwriters (which, for purposes hereof, shall be deemed to equal (x) the total number of
Shares purchased by the Underwriter as set forth on Schedule I multiplied by (y)(i) $86.88
(the closing price of the Shares on the Exchange on the date immediately preceding the date
hereof) minus (ii) the purchase price per share set forth in Section 2). 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
25
omission to state a material fact relates to information supplied by the Company or the
Selling Stockholders on the one hand or the Underwriters on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, each of the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this subsection
(e) were determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, and no Selling Stockholder shall be
required to contribute any amount in excess of the product of (i) the number of Shares sold
by such Selling Stockholder and (ii) the per share purchase price set forth in Section 2
hereof. 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.
(f) The obligations of the Company and the Selling Stockholders under this Section 9
shall be in addition to any liability which the Company and the respective Selling
Stockholders may otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of the Act; and 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 or any Selling Stockholder within the meaning of the Act.
10. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Selling Stockholders and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or
the Company, or any of the Selling Stockholders, or any officer or director or controlling person
of the Company, or any controlling person of any Selling Stockholder, and shall survive delivery of
and payment for the Shares.
11. If this Agreement shall be terminated pursuant to paragraphs (i), (iii), (iv) or (v) of
Section 8(l) hereof, neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other
reason any Shares are not delivered by or on behalf of the Selling Stockholders as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in
writing by you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and
26
the Selling Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 7 and 9 hereof.
12. In all dealings with any Selling Stockholder hereunder, you and the Company shall be
entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if to any Selling Stockholder
shall be delivered or sent by mail or facsimile transmission to each Selling Stockholder, in care
of Xxxxxxxxx & Co., Inc. at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Deputy General Counsel; and if to the Company shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in the Registration Statement,
Attention: Secretary. 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 clients, including the Company, which information may include the
name and address of their clients, as well as other information that will allow the Underwriters to
properly identify their clients.
13. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and the Selling Stockholders and, to the extent provided in Sections 9
and 10 hereof, the officers and directors of the Company and each person who controls the Company,
any Selling Stockholder or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. 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.
15. The Company and each Selling Stockholder 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
Selling Stockholders, on the one hand, and the several Underwriters, on the other, (ii) in
connection therewith and with the process leading to such transaction each Underwriter is acting
solely as a principal and not the agent or fiduciary of the Company or any Selling Stockholder,
(iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or
any Selling Stockholder 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
or any such Selling Stockholder on other matters) or any other obligation to the Company or any
Selling Stockholder except the obligations expressly set forth in this Agreement and (iv) it has
consulted its own legal and financial advisors to the extent it deemed appropriate. Each of the
Company and each Selling Stockholder 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 it in connection with such transaction or the process leading thereto.
27
16. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, the Selling Stockholders and the Underwriters, or any of them, with
respect to the subject matter hereof.
17. The Company, the Selling Stockholders and each of the Underwriters hereby irrevocably
waive, 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.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. 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.
20. Notwithstanding anything herein to the contrary, the Company and the Selling Stockholders
are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Company and the Selling Stockholders relating to that treatment
and structure, without the Underwriters imposing any limitation of any kind. However, any
information relating to the tax treatment and tax structure shall remain confidential (and the
foregoing sentence shall not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to
that treatment.
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement among you, the Company and each of the Selling Stockholders.
28
Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling
Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such
Selling Stockholder pursuant to a validly existing and binding Power-of-Attorney which authorizes
such Attorney-in-Fact to take such action.
Very truly yours, XXXXXXXXX & CO., INC. |
||||
By: | /s/ Xxxxxx Xxxxx | |||
Name: | Xxxxxx Xxxxx | |||
Title: | General Counsel | |||
GREENHILL FAMILY LIMITED PARTNERSHIP RIVERSVILLE AIRCRAFT CORPORATION II XXXXX X. XXX XXX FAMILY FOUNDATION XXXXX X. BORROWS XXXXXX X. XXXXXXX XXXXXX X. XXXXXXX TRUSTEE 2008 GRAT XXXXXXX X. XXXXXX XXXXXXX XXXXXX XXX 7, 2004 DESCENDANTS TRUST XXXXXXX X. XXXXXX GRAT NO. 2 XXXXX X.X. XXXXXX XXXXXXX X. XXXXXXXX XXXXXXXX FAMILY FOUNDATION XXXXX X. XXXXXX XXXXXXX XXXXXXXX XXXXXX XXXXX XXXXXXX X. XXXX XXXXXXX X. XXXXXX XXXXXXX XXXXX V. XXXXX XXXXXX XXXXXXX X. XXXXXXXX CONVENT OF THE SACRED HEART |
||||
XXXXXXX X. XXXXXX XXXXXXXXX X. XXXXXXXXX XXXXX X. XXX XXXXX XXXXX |
||||
By: | /s/ Xxxxxx Xxxxx | |||
Name: | Xxxxxx Xxxxx | |||
Title: | General Counsel | |||
As Attorney-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to this Agreement. |
Accepted as of the date hereof |
||||
/s/ Xxxxxxx Sachs & Co. | ||||
(Xxxxxxx, Xxxxx & Co.) | ||||
SCHEDULE I
Total Number of Shares | ||||
Underwriters | to be Purchased | |||
Xxxxxxx, Sachs & Co. |
2,500,000 | |||
Total |
2,500,000 | |||
I-1
SCHEDULE II
The Selling Stockholder(s)*: | ||||
Total | ||||
Number of | ||||
Shares to be | ||||
Sold | ||||
GREENHILL FAMILY LIMITED PARTNERSHIP |
678,209 | |||
RIVERSVILLE AIRCRAFT CORPORATION II |
164,274 | |||
XXXXX X. XXX |
225,687 | |||
BOK FAMILY FOUNDATION |
39,827 | |||
XXXXX X. BORROWS |
267,056 | |||
XXXXXX X. XXXXXXX |
65,871 | |||
XXXXXX X. XXXXXXX TRUSTEE 2008 GRAT |
131,741 | |||
XXXXXXX X. XXXXXX |
238,045 | |||
XXXXXXX X. XXXXXX XXX 7, 2004 DESCENDANTS TRUST |
11,539 | |||
XXXXXXX X. XXXXXX GRAT NO. 2 |
11,539 | |||
XXXXX X.X. XXXXXX |
263,613 | |||
XXXXXXX X. XXXXXXXX |
27,481 | |||
XXXXXXXX FAMILY FOUNDATION |
3,000 | |||
XXXXX X. XXXXXX |
39,677 |
I-1
Total | ||||
Number of | ||||
Shares to be | ||||
Sold | ||||
XXXXXXX XXXXXXXX |
21,819 | |||
XXXXXX XXXXX |
5,451 | |||
XXXXXXX X. XXXX |
5,302 | |||
XXXXXXX X. XXXXXX |
21,391 | |||
XXXXXXX XXXXX |
34,550 | |||
V. XXXXX XXXXXX |
21,717 | |||
XXXXXXX X. XXXXXXXX |
22,323 | |||
CONVENT OF THE SACRED HEART |
275 | |||
XXXXXXX X. XXXXXX |
32,944 | |||
XXXXXXXXX X. XXXXXXXXX |
10,000 | |||
XXXXX X. XXX |
116,806 | |||
XXXXX XXXXX |
39,863 | |||
TOTAL |
2,500,000 | |||
* | Each Selling Stockholder has appointed Xxxxxxx X. Xxxx, Xxxxxx Xxxxx and Xxxxxx X. Xxxxxxxxx, Xx., and each of them, as the Attorneys-in-Fact for such Selling Stockholder. |
I-1
SCHEDULE III
Attorneys-in-Fact
Xxxxxxx X. Xxxx
Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxxxx, Xx.
SCHEDULE IV
Schedule IV Selling Stockholders:
GREENHILL FAMILY LIMITED PARTNERSHIP
RIVERSVILLE AIRCRAFT CORPORATION II
THE BOK FAMILY FOUNDATION
XXXXXX X. XXXXXXX 2008 TRUST GRAT
XXXXXXX XXXXXX XXX 7, 2004 DESCENDANTS TRUST
XXXXXXX X. XXXXXX GRAT NO. 2
XXXXXXXX FAMILY FOUNDATION
CONVENT OF THE SACRED HEART
SCHEDULE V
(a) | Issuer Free Writing Prospectuses: | |
None | ||
(b) | Other Free Writing Prospectuses: | |
None | ||
(c) | Additional Documents Incorporated by Reference: | |
None |