Shares of Common Stock H&R Block, Inc. PLACEMENT AGENT AGREEMENT
Exhibit 1.1
8,285,714
Shares of Common Stock
H&R Block, Inc.
October
22, 2008
LAZARD CAPITAL MARKETS LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introduction. H&R Block, Inc., a Missouri corporation (the “Company”), proposes to
issue and sell to the purchasers, pursuant to the terms and conditions of this Placement Agent
Agreement (this “Agreement”) and the Subscription Agreements in the form of Exhibit A
attached hereto (the “Subscription Agreements”) entered into with the purchasers identified therein
(each a “Purchaser” and collectively, the “Purchasers”), up to an aggregate of 8,285,714 shares of
common stock, without par value (the “Common Stock”) of the Company. The aggregate of 8,285,714
shares so proposed to be sold is hereinafter referred to as the “Stock.” The Company hereby
confirms that Lazard Capital Markets LLC acted as Placement Agent (“LCM,” or the “Placement Agent”)
in accordance with the terms and conditions hereof.
2. Agreement to Act as Placement Agent; Placement of Securities. On the basis of the
representations, warranties and agreements of the Company herein contained, and subject to all the
terms and conditions of this Agreement:
2.1 The Company has authorized and hereby acknowledges that the Placement Agent has
acted as its exclusive agent to solicit offers for the purchase of all or part of the Stock
from the Company in connection with the proposed offering of the Stock (the “Offering”).
Until the Closing Date (as defined in Section 4 hereof), the Company shall not,
without the prior written consent of the Placement Agent, solicit or accept offers to
purchase Stock otherwise than through the Placement Agent. LCM may utilize the expertise of
Lazard Frères & Co. LLC in connection with LCM’s placement agent activities.
2.2 The Company hereby acknowledges that the Placement Agent, as agent of the Company, used
its commercially reasonable best efforts to solicit offers to purchase the Stock from the
Company on the terms and subject to the conditions set forth in the Prospectus (as defined
below). The Placement Agent has delivered to the Company a list of prospective purchasers
of the Stock that have been contacted by the Placement Agent, and which list of purchasers
has been previously discussed with the Company. The Placement Agent shall use commercially
reasonable efforts to assist the Company in obtaining performance by each Purchaser whose
offer to purchase Stock was solicited by
the Placement Agent and accepted by the Company, but the Placement Agent shall not,
except as otherwise provided in this Agreement, have any liability to the Company in the
event any such purchase is not consummated for any reason. Under no circumstances will the
Placement Agent underwrite or purchase any Stock for its own account and, in soliciting
purchases of Stock, the Placement Agent acted solely as the Company’s agent and not as
principal.
2.3 Subject to the provisions of this Section 2, offers for the purchase of
Stock were solicited by the Placement Agent as agent for the Company at such times and in
such amounts as the Placement Agent deemed advisable. The Placement Agent communicated to
the Company, orally or in writing, each reasonable offer to purchase Stock received by it as
agent of the Company. The Company shall have the sole right to accept offers to purchase
the Stock and may reject any such offer, in whole or in part. After receiving consent from
the Company, the Placement Agent may reject any offer to purchase Stock received by it, in
whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
2.4 The Stock is being sold to the Purchasers at a price of $17.50 per share. The
purchases of the Stock by the Purchasers shall be evidenced by the execution of Subscription
Agreements by each of the Purchasers and the Company.
2.5 As compensation for services rendered, on the Closing Date (as defined in
Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of
immediately available funds to an account or accounts designated by the Placement Agent, an
aggregate amount equal to three percent (3.0%) of the gross proceeds received by the Company
from the sale of the Stock on such Closing Date; provided, however, that no fees shall be
payable by the Company in respect of any proceeds in an amount up to an aggregate of
$50,000,000 invested by those certain entities set forth on Schedule D hereto.
2.6 No Stock which the Company has agreed to sell pursuant to this Agreement and the
Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the
Company, until such Stock shall have been delivered to the Purchaser thereof against payment
by such Purchaser. If the Company shall default in its obligations to deliver Stock to a
Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement
Agent harmless against any loss, claim, damage or expense arising from or as a result of
such default by the Company in accordance with the procedures set forth in Section 8(c)
herein.
3. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, the Placement Agent and the Purchasers that:
(a) The Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the “Securities Act”), and the published rules and
regulations thereunder (the “Rules and Regulations”) adopted by the Securities and Exchange
Commission (the “Commission”) an Automatic Shelf Registration Statement (“Automatic Shelf
Registration Statement”, as that term is defined in Rule 405 of the
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Securities
Act) on Form S-3 (File No. 333-154611), which became effective upon
filing on October 22, 2008 (the “Effective Date”), including a base prospectus relating to
the securities registered pursuant to such Automatic Shelf Registration Statement (the
“Base Prospectus”), and such amendments and supplements thereto as may have been required to
the date of this Agreement. The term “Registration Statement” as used in this Agreement
means the Automatic Shelf Registration Statement (including all exhibits, financial
schedules and all documents and information deemed to be a part of the Registration
Statement pursuant to Rule 430B of the Rules and Regulations), as amended and/or
supplemented to the date of this Agreement, including the Base Prospectus. The Registration
Statement, and any post-effective amendment thereto, is effective under the Securities Act
and no stop order preventing or suspending the effectiveness of the Registration Statement
or suspending or preventing the use of the Prospectus has been issued by the Commission and
no proceedings for that purpose have been instituted or, to the knowledge of the Company,
are threatened or contemplated by the Commission, and any request for additional information
has been complied with. The Company, if required by the Rules and Regulations of the
Commission, will file the Prospectus (as defined below), with the Commission pursuant to
Rule 424(b) of the Rules and Regulations. The term “Prospectus” as used in this Agreement
means the Prospectus, in the form in which it is to be filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations, or, if the Prospectus is not to be filed with the
Commission pursuant to Rule 424(b), the Prospectus in the form included as part of the
Registration Statement as of the Effective Date, except that if any revised prospectus or
prospectus supplement shall be provided to the Placement Agent by the Company for use in
connection with the offering and sale of the Stock which differs from the Prospectus
(whether or not such revised prospectus or prospectus supplement is required to be filed by
the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus”
shall refer to such revised prospectus or prospectus supplement, as the case may be, from
and after the time it is first provided to the Placement Agent for such use. Any preliminary
prospectus or prospectus subject to completion included in the Registration Statement or
filed with the Commission pursuant to Rule 424 of the Rules and Regulations is hereafter
called a “Preliminary Prospectus.” Any reference herein to the Registration Statement, 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 which were filed
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the
last to occur of the Effective Date, the date of the Preliminary Prospectus, or the date of
the Prospectus, and any reference herein to the terms “amend,” “amendment,” or “supplement”
with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include (i) the filing of any document under the Exchange
Act after the Effective Date, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, which is incorporated by reference and (ii) any such
document so filed. If the Company has filed an abbreviated registration statement to
register additional Stock pursuant to Rule 462(b) under the Rules (the “462(b) Registration
Statement”), then any reference herein to the Registration Statement shall also be deemed to
include such 462(b) Registration Statement.
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(b) As of the date hereof, the Company is, and shall be as of the Closing Date, a
Well-Known Seasoned Issuer (“WKSI”), as such term is defined in Rule 405 of the Securities
Act, and the Rules and Regulations of the Commission thereunder, and is not, and shall not
be as of the Closing Date, an Ineligible Issuer (as defined in Rule 405 of the Securities
Act).
(c) As of the Applicable Time (as defined below) and as of the Closing Date, neither
(i) any General Use Free Writing Prospectus (as defined below) issued at or prior to the
Applicable Time, and the Pricing Prospectus (as defined below) and the information included
on Schedule A hereto, all considered together (collectively, the “General Disclosure
Package”), (ii) any individual Limited Use Free Writing Prospectus (as defined below), if
any, issued at or prior to the Applicable Time, nor (iii) the bona fide electronic road show
(as defined in Rule 433(h)(5) of the Rules and Regulations) that has been made available
without restriction to any person, when considered together with the General Disclosure
Package, included or will include, any untrue statement of a material fact or omitted or as
of the Closing Date will omit, 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; provided, however, that the Company makes no representations or warranties as to
information contained in or omitted from any Issuer Free Writing Prospectus, in reliance
upon, and in conformity with, written information furnished to the Company by the Placement
Agent specifically for inclusion therein, which information the parties hereto agree is
limited to the Placement Agent’s Information (as defined in Section 17). As used in
this paragraph (b) and elsewhere in this Agreement:
“Applicable Time” means 5:00 P.M., New York time, on the date of this Agreement.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule A to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the Rules and Regulations relating to the Stock in the form filed or required to
be filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g) of the Rules and Regulations.
“Limited Use Free Writing Prospectuses” means any Issuer Free Writing Prospectus that is not
a General Use Free Writing Prospectus.
“Pricing Prospectus” means the Preliminary Prospectus, if any, and the Base Prospectus, each
as amended and supplemented immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement deemed to be a part thereof.
(d) No order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus relating to the Offering has been issued by the
Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities
Act has been instituted or to our knowledge threatened by the
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Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Securities Act and the Rules and
Regulations, 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 the Company makes no representations or warranties as to information contained
in or omitted from any Preliminary Prospectus, in reliance upon, and in conformity with,
written information furnished to the Company by the Placement Agent specifically for
inclusion therein, which information the parties hereto agree is limited to the Placement
Agent’s Information (as defined in Section 17).
(e) At the time the Registration Statement became or becomes effective, at the date of
this Agreement and at the Closing Date, the Registration Statement conformed and will
conform in all material respects to the requirements of the Securities Act and the Rules and
Regulations and did not 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; the Prospectus, at the time the Prospectus was issued and at the
Closing Date, conformed and will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations and warranties in this
paragraph (e) shall not apply to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by the Placement Agent specifically for inclusion
therein, which information the parties hereto agree is limited to the Placement Agent’s
Information (as defined in Section 17).
(f) Each Issuer Free Writing Prospectus, if any, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the Stock or until
any earlier date that the Company notified or notifies the Placement Agent as described in
Section 5(e), did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, Pricing Prospectus or the Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof that has not
been superseded or modified, or includes an untrue statement of a material fact or omitted
or would omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances prevailing at the
subsequent time, not misleading. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon, and in conformity with,
written information furnished to the Company by the Placement Agent specifically for
inclusion therein, which information the parties hereto agree is limited to the Placement
Agent’s Information (as defined in Section 17).
(g) The documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
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requirements of the Exchange Act and the rules and regulations of the Commission
thereunder or the Securities Act, as applicable, and, when read together with the other
information in the Prospectus, (i) at the time the Registration Statement became effective,
(ii) at the earlier of time the Prospectus was first used and the date and time of the first
contract of sale of Stock in this offering and (iii) at the Closing Date, did not and will
not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
(h) The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the Offering other than any Preliminary Prospectus,
the Prospectus and other materials, if any, permitted under the Securities Act and
consistent with Section 5(b) below. The Company will file with the Commission all
Issuer Free Writing Prospectuses (other than a “road show,” as defined in Rule 433(d)(8) of
the Rules and Regulations), if any, in the time and manner required under Rules 163(b)(2)
and 433(d) of the Rules and Regulations.
(i) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the state of Missouri and has the corporate power and
authority to own, lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under this Agreement. The
Company owns or controls, directly or indirectly, only the corporations, partnerships,
limited liability partnerships, limited liability companies, associations or other entities
included in Schedule C annexed hereto.
(j) Each subsidiary of the Company (as defined in Section 15) has been duly
organized and is validly existing as a limited liability company, corporation, or federal
savings bank, as applicable, in good standing under the laws of the jurisdiction of its
organization, has limited liability company or corporate power and authority, as applicable,
to own, lease and operate its properties and to conduct its business as described in the
Prospectus; except as otherwise disclosed in the General Disclosure Package, all of the
issued and outstanding capital stock or limited liability company interests, as applicable,
of each such subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable, as applicable, and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock or limited liability
company interests, as applicable, of any subsidiary was issued in violation of the
preemptive or similar rights of any security-holder of such subsidiary.
(k) This Agreement, each of the Subscription Agreements and that certain Escrow
Agreement, dated as of the date hereof by and among the Company, the Placement Agent and the
escrow agent named therein (the “Escrow Agreement”), has been duly authorized, executed and
delivered by the Company and the Company has the authority to perform and to discharge its
obligations hereunder and thereunder, and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as enforceability may be
subject to general principles of
6
equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as to the enforceability of any rights to indemnification or
contribution that may be violative of the public policy underlying any law, rule or
regulation (including any federal or state securities law, rule or regulation).
(l) The Stock to be issued and sold by the Company to the Purchasers hereunder and
under the Subscription Agreements has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein and the Subscription Agreements, will
be duly and validly issued, fully paid and nonassessable and free of any preemptive or
similar rights and will conform to the description thereof contained in the General
Disclosure Package and the Prospectus.
(m) The Company has an authorized capitalization as set forth in the Pricing
Prospectus, and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable, have been issued in
compliance with federal and state securities laws, and conform to the description thereof
contained in the General Disclosure Package. None of the outstanding shares of Common Stock
was issued in violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. There are no authorized or
outstanding shares of capital stock, options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries
other than those described above or accurately described in the General Disclosure Package.
The description of the Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder, as described in the
General Disclosure Package, accurately and fairly present the information required to be
shown with respect to such plans, arrangements, options and rights.
(n) Except as otherwise disclosed in the General Disclosure Package, all of the issued
and outstanding capital stock or limited liability company interests, as applicable, of each
such subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable, as applicable, and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock or limited liability
company interests, as applicable, of any subsidiary was issued in violation of the
preemptive or similar rights of any security-holder of such subsidiary.
(o) Neither the Company nor any of its subsidiaries is in violation of its charter,
by-laws or operating agreement, as applicable, or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by
which they or any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, “Agreements and Instruments”) except for
such violations or defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, each of the Subscription
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Agreements and the Escrow Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the issuance and sale of
the Stock and the use of the proceeds from the sale of the Stock as described in the
Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its
obligations hereunder and under each of the Subscription Agreements and the Escrow Agreement
and the Stock has been duly authorized by all necessary corporate or limited liability
company action, as applicable, and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any subsidiary
pursuant to the Agreements and Instruments (except for such conflicts, breaches, defaults or
Repayment Events or liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the provisions of (i) the
charter, by-laws or operating agreement, as applicable, of the Company or any subsidiary or
(ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any subsidiary or any of their assets, properties or operations, except,
with respect to section (ii) above, for such violations that would not result in a Material
Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary. Except for the registration
of the Stock under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act and applicable
state or foreign securities laws, the Financial Industry Regulatory Authority, Inc.
(“FINRA”) and the New York Stock Exchange in connection with the offering and sale of the
Stock by the Company, no consent, approval, authorization or order of, or filing,
qualification or registration with, any court or governmental agency or body, foreign or
domestic, which has not been made, obtained or taken and is not in full force and effect, is
required for the execution, delivery and performance of this Agreement, the Subscription
Agreements and the Escrow Agreement by the Company, the offer or sale of the Stock or the
consummation of the transactions contemplated hereby or thereby.
(p) Deloitte and Touche LLP (and KPMG LLP, who audited the financial statements and
financial statement schedules as of April 30, 2007 and for each of the years in the two-year
period ended April 30, 2007 included or incorporated by reference in the Registration
Statement and General Disclosure Package was, when serving as the Company’s and its
subsidiaries’ independent registered public accounting firm), audited the Company’s internal
control over financial reporting and are independent public accountants as required by the
Securities Act and the Rules and Regulations thereunder and the Public Company Accounting
Oversight Board (United States) (the “PCAOB”). Except as pre-approved in accordance with
the requirements set forth in Section 10A of the Exchange Act, Deloitte and Touche LLP has
not been engaged by the Company to perform any “prohibited activities” (as defined in
Section 10A of the Exchange Act).
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(q) The financial statements, together with the related notes and schedules, included
or incorporated by reference in the General Disclosure Package and in the Registration
Statement fairly present the financial position and the results of operations and changes in
financial position of the Company and its consolidated subsidiaries and other consolidated
entities at the respective dates or for the respective periods therein specified. Such
statements and related notes and schedules have been prepared in accordance with the
generally accepted accounting principles in the United States (“GAAP”) applied on a
consistent basis throughout the periods involved except as may be set forth in the related
notes included or incorporated by reference in the General Disclosure Package. The
financial statements, together with the related notes and schedules, included or
incorporated by reference in the General Disclosure Package comply in all material respects
with the Securities Act, the Exchange Act, and the Rules and Regulations and the rules and
regulations under the Exchange Act. No other financial statements or supporting schedules
or exhibits are required by the Securities Act or the Rules and Regulations to be described,
or included or incorporated by reference in the Registration Statement or the General
Disclosure Package. There is no pro forma or as adjusted financial information which is
required to be included in the Registration Statement or the General Disclosure Package or a
document incorporated by reference therein in accordance with the Securities Act and the
Rules and Regulations which has not been included or incorporated as so required.
(r) Since the respective dates as of which information is given in the Registration
Statement or the General Disclosure Package, except as otherwise stated therein, (i) there
has been no material adverse change or prospective material adverse change in the financial
condition, the earnings or the business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business (a
“Material Adverse Effect”), (ii) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one enterprise, and
(iii) there has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock or other equity securities.
(s) Except as described in the Registration Statement and the General Disclosure
Package, there are no legal, governmental or regulatory investigations, actions, suits,
claim or proceedings pending to which the Company or any of its subsidiaries is or may be a
party or to which any property or assets of the Company or any of its subsidiaries is or may
be the subject as to which there is a reasonable possibility of an adverse determination and
that if determined adversely to the Company or any of its subsidiaries, would reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect; except as
described in the Registration Statement and the General Disclosure Package, to the knowledge
of the Company, no such investigations, actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or threatened by others; and (i)
there are no current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in the Prospectus
that are not so described and (ii) there are no contracts or other documents that are
required under the
9
Securities Act to be filed as exhibits to the Registration Statement or described in
the Registration Statement or the General Disclosure Package that are not so filed or
described.
(t) Except as described in the Registration Statement and the General Disclosure
Package, the Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by, and have made all declarations and filings with, the
appropriate federal, state, local or foreign governmental or regulatory authorities that are
necessary for the ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement and the General Disclosure
Package, except where the failure to possess or make the same would not, individually or in
the aggregate, result in a Material Adverse Effect.
(u) Neither the Company nor any of its subsidiaries is or, after giving effect to the
offering of the Stock as herein contemplated and the application of the net proceeds
therefrom as described in the General Disclosure Package, will become, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(v) Neither the Company, its subsidiaries nor, to the Company’s knowledge, any of the
Company’s or its subsidiaries’ officers, directors or affiliates has taken or will take,
directly or indirectly, any action designed or intended to stabilize or manipulate the price
of any security of the Company, or which caused or resulted in, or which might in the future
reasonably be expected to cause or result in, stabilization or manipulation of the price of
any security of the Company.
(w) The Company and its subsidiaries each maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as described in the
General Disclosure Package, since the end of the Company’s most recent audited fiscal year,
there as been (A) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (B) no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(x) The Company and its subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s
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management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
(y) No person or entity has the right to require registration of shares of Common Stock
or other securities of the Company or any of its subsidiaries because of the filing or
effectiveness of the Registration Statement or otherwise, except for persons and entities
who have expressly waived such right in writing or who have been given timely and proper
written notice and have failed to exercise such right within the time or times required
under the terms and conditions of such right. Except as described in the General Disclosure
Package, there are no persons with registration rights or similar rights to have any
securities registered by the Company or any of its subsidiaries under the Securities Act.
(z) Neither the Company nor any of its subsidiaries is a party to any contract,
agreement or understanding with any person that would give rise to a valid claim against the
Company or the Placement Agent for a brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Stock or any transaction contemplated by this
Agreement, the Registration Statement or the General Disclosure Package.
(aa) No forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) contained in either the General Disclosure Package
or the Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(bb) The Company is subject to and in compliance in all material respects with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act. The Common Stock
is registered pursuant to Section 12(g) of the Exchange Act and is listed on the New York
Stock Exchange (the “NYSE”), and the Company has taken no action designed to, or reasonably
likely to have the effect of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the NYSE, nor has the Company received any
notification that the Commission or FINRA is contemplating terminating such registration or
listing. Other than the filing of an additional listing application to and approval by the
NYSE thereof, no consent, approval, authorization or order of, or filing, notification or
registration with, the NYSE is required for the listing and trading of the Stock on the
NYSE.
(cc) The Company, and any of its directors and officers, in their capacities as such,
are in compliance in all material respects with all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated thereunder in
connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
4. The Closing. The time and date of closing and delivery of the documents required to
be delivered to the Placement Agent pursuant to Sections 5 and 7 hereof shall be at
10:00 A.M., New York time, on October 27, 2008 (the “Closing Date”) at the offices of Husch
Xxxxxxxxx Xxxxxxx LLP, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, XX 00000.
11
5. Further Agreements of the Company. The Company agrees with the Placement Agent and
the Purchasers:
(a) In connection with the Offering of Stock contemplated by this Agreement: to prepare
the Rule 462(b) Registration Statement, if necessary, in a form approved by the Placement
Agent and file such Rule 462(b) Registration Statement with the Commission on the date
hereof; to prepare the Prospectus in a form approved by the Placement Agent containing
information previously omitted at the time of effectiveness of the Registration Statement in
reliance on rules 430A, 430B and 430C and to file such Prospectus in the manner and within
the time period required by Rule 424(b) of the Rules and Regulations not later than the
second business (2nd) day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required by Rule 430A of the Rules and
Regulations; to notify the Placement Agent immediately of the Company’s intention to file or
prepare any new registration statement, any supplement or amendment to the Registration
Statement or to the Prospectus and to make no such filing, amendment or supplement to the
Registration Statement or the General Disclosure Package, or to file a new registration
statement, to which the Placement Agent shall reasonably object by notice to the Company
after a reasonable period to review; to advise the Placement Agent, promptly after it
receives notice thereof, of the time when any amendment to any Registration Statement has
been filed or becomes effective or any supplement to the General Disclosure Package or the
Prospectus or any amended Prospectus has been filed and to furnish the Placement Agent
copies thereof; to file promptly all material required to be filed by the Company with the
Commission pursuant to Rule 433(d) or 163(b)(2), as the case may be; 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) of the Rules and Regulations) is
required in connection with the offering or sale of the Stock; to advise the Placement
Agent, 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 the Registration Statement or
any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, of the
suspension of the qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose or of any examination
pursuant to Section 8(e) of the Securities Act concerning the Registration Statement or if
the Company becomes the subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Stock, or the receipt of any comments by the Commission
or of any request by the Commission for the amending or supplementing of the Registration
Statement, the General Disclosure Package or the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for the filing of a new
registration statement or for additional information. The Company will make every
reasonable effort to prevent the issuance of any stop order and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of the
Registration Statement or any Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus or suspending any such qualification, promptly use its best efforts to obtain
the withdrawal of such order.
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(b) The Company represents and agrees that, unless it obtains the prior consent of the
Placement Agent, it has not made and will not, make any offer relating to the Stock that
would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and
Regulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written
consent of the Placement Agent hereto shall be deemed to have been given in respect of the
Issuer Free Writing Prospectus included in Schedule A hereto. The Company
represents that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied
and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations
applicable to any Issuer Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping and will not take any action that
would result in the Placement Agent or the Company being required to file with the
Commission pursuant to Rule 433(d) of the Rules and Regulations a free writing prospectus
prepared by or on behalf of such Placement Agent that such Placement Agent otherwise would
not have been required to file thereunder.
(c) If at any time when a Prospectus relating to the Stock is required to be delivered
under the Securities Act, any event occurs or condition exists as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, or the
Registration Statement, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein
not misleading, or if for any other reason it is necessary at any time to amend or
supplement any Registration Statement or the Prospectus to comply with the Securities Act or
the Exchange Act, the Company will promptly notify the Placement Agent, and upon the
Placement Agent’s request, the Company will promptly prepare and file with the Commission,
at the Company’s expense, an amendment to the Registration Statement or an amendment or
supplement to the Prospectus that corrects such statement or omission or effects such
compliance and will deliver to the Placement Agent, without charge, such number of copies
thereof as the Placement Agent may reasonably request. The Company consents to the use of
the Prospectus or any amendment or supplement thereto by the Placement Agent.
(d) If the General Disclosure Package is being used to solicit offers to buy the Stock
at a time when the Prospectus is not yet available to prospective purchasers and any event
shall occur as a result of which, in the judgment of the Company or in the reasonable
opinion of the Placement Agent, it becomes necessary to amend or supplement the General
Disclosure Package in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, or to make the statements therein not
conflict with the information contained or incorporated by reference in the Registration
Statement then on file and not superseded or modified, or if it is necessary at any time to
amend or supplement the General Disclosure Package to comply with any law, the Company
promptly will either (i) prepare, file with the Commission (if required) and furnish to the
Placement Agent and any dealers an appropriate amendment or supplement to the General
Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under
the Exchange Act which shall be incorporated by
13
reference in the General Disclosure Package so that the General Disclosure Package as
so amended or supplemented will not, in the light of the circumstances then prevailing, be
misleading or conflict with the Registration Statement then on file, or so that the General
Disclosure Package will comply with law.
(e) If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or will conflict with the information contained in the Registration
Statement, Pricing Prospectus or Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof and not
superseded or modified, or the Issuer Free Writing Prospectus included or would include an
untrue statement of a material fact or omitted or would omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances prevailing at the subsequent time, not misleading, the Company
has promptly notified or will promptly notify the Placement Agent so that any use of the
Issuer Free Writing Prospectus may cease until it is amended or supplemented and has
promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus in reliance upon, and in conformity with, written information furnished to the
Company by the Placement Agent specifically for inclusion therein, which information the
parties hereto agree is limited to the Placement Agent’s Information (as defined in
Section 17).
(f) To deliver promptly to the Placement Agent in New York City such number of the
following documents as the Placement Agent shall reasonably request: (i) conformed copies
of the Registration Statement as originally filed with the Commission (in each case
excluding exhibits), (ii) each Preliminary Prospectus, (iii) any Issuer Free Writing
Prospectus, (iv) the Prospectus (the delivery of the documents referred to in clauses (i),
(ii), (iii) and (iv) of this paragraph (f) to be made not later than 10:00 A.M., New
York time, on the business day following the execution and delivery of this Agreement), (v)
conformed copies of any amendment to the Registration Statement (excluding exhibits), (vi)
any amendment or supplement to the General Disclosure Package or the Prospectus (the
delivery of the documents referred to in clauses (v) and (vi) of this paragraph (f)
to be made not later than 10:00 A.M., New York City time, on the business day following the
date of such amendment or supplement) and (vii) any document incorporated by reference in
the General Disclosure Package or the Prospectus (excluding exhibits thereto) (the delivery
of the documents referred to in clause (vi) of this paragraph (f) to be made not
later than 10:00 A.M., New York City time, on the business day following the date of such
document).
(g) The Company will timely file such reports pursuant to the Exchange Act as are
necessary in order to make generally available to its security-holders as soon as
practicable an earnings statement of the Company and its subsidiaries for the purposes of,
and to provide to the Placement Agent the benefits contemplated by, the last paragraph of
Section 11(a) of the Securities Act.
14
(h) That it will use its reasonable best efforts, in cooperation with the Placement
Agent, to qualify the Stock for offering and sale under the applicable securities laws of
such states and other jurisdictions as the Placement Agent may reasonably designate and to
maintain such qualifications in effect for so long as required for distribution of the
securities; provided, however, that the Company and its subsidiaries shall not be obligated
to file any general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or subject
itself to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will also supply the Placement Agent with such information
as is necessary for the determination of the legality of the Stock for investment under the
laws of such jurisdictions as the Placement Agent may reasonably request.
(i) That the Company will not, for a period of sixty (60) days from the date of the
Prospectus, (the “Lock-Up Period”) without the prior written consent of LCM, directly or
indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, other than the Company’s sale of the Stock hereunder and the issuance of
restricted Common Stock or options to acquire Common Stock pursuant to the Company’s
employee benefit plans, qualified stock option plans or other employee compensation plans as
such plans are in existence on the date hereof and described in the Prospectus and the
issuance of Common Stock pursuant to the valid exercises of options, warrants or rights
outstanding on the date hereof. The Company will cause each executive officer and director
listed in Schedule B to furnish to the Placement Agent, prior to the Closing Date, a
letter, substantially in the form of Exhibit B hereto, pursuant to which each such
person shall agree, among other things, not to directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock, not to
engage in any swap or other agreement or arrangement that transfers, in whole or in part,
directly or indirectly, the economic risk of ownership of Common Stock or any such
securities and not to engage in any short selling of any Common Stock or any such
securities, during the Lock-Up Period, without the prior written consent of LCM. The
Company also agrees that during such period, the Company will not file any registration
statement, preliminary prospectus or prospectus, or any amendment or supplement thereto,
under the Securities Act for any such transaction or which registers, or offers for sale,
Common Stock or any securities convertible into or exercisable or exchangeable for Common
Stock, except for a registration statement on Form S-8 relating to employee benefit plans.
The Company hereby agrees that (i) if it issues an earnings release or material news, or if
a material event relating to the Company occurs, during the last seventeen (17) days of the
Lock-Up Period, or (ii) if prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the sixteen (16)-day period beginning
on the last day of the Lock-Up Period, the restrictions imposed by this paragraph
(i) or the letter shall continue to apply until the expiration of the eighteen (18)-day
period beginning on the issuance of the earnings release or the occurrence of the material
news or material event.
15
(j) Prior to the Closing Date, not to issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company, its
condition, financial or otherwise, or earnings, business affairs or business prospects
(except for routine oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the Placement Agent is
notified), without the prior written consent of the Placement Agent, unless in the judgment
of the Company and its counsel, and after notification to the Placement Agent, such press
release or communication is required by law.
(k) Until the Placement Agent shall have notified the Company of the completion of the
offering of the Stock, that the Company will not, and will cause its affiliated purchasers
(as defined in Regulation M under the Exchange Act) not to, either alone or with one or more
other persons, bid for or purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Stock, or attempt to induce any person to purchase
any Stock; and not to, and to cause its affiliated purchasers not to, make bids or purchase
for the purpose of creating actual, or apparent, active trading in or of raising the price
of the Stock.
(l) To at all times up to and including the Closing Date comply with all applicable
provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(m) To apply the net proceeds received by it from the sale of the Stock in the manner
specified in the Prospectus under the heading “Use of Proceeds.”
(n) To use its best efforts to effect, list and maintain, subject to notice of
issuance, the Stock on the NYSE.
(o) To use its best efforts to do and perform all things required to be done or
performed under this Agreement by the Company prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Stock.
6. Payment of Expenses. The Company agrees to pay, or reimburse if paid by the
Placement Agent, whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated: (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Stock to the Purchasers and any taxes payable in that connection; (b) the costs
incident to the Registration of the Stock under the Securities Act; (c) the costs incident to the
preparation, printing and distribution of the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package, the
Prospectus, any amendments, supplements and exhibits thereto or any document incorporated by
reference therein and the costs of printing, reproducing and distributing any transaction document
by mail, telex or other means of communications; (d) the fees and expenses (including related fees
and expenses of counsel for the Placement Agent) incurred in connection with securing any required
review by FINRA, if any, of the terms of the sale of the Stock and any filings made with FINRA; (e)
any applicable listing, quotation or other fees; (f) the fees and expenses (including related fees
and expenses of counsel to the Placement Agent) of qualifying the Stock under the securities laws
of the several jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing wrappers, Blue Sky Memoranda and Legal Investment
16
Surveys; (g) the cost of preparing and printing stock certificates; (h) all fees and expenses
of the registrar and transfer agent of the Stock; (i) the fees, disbursements and expenses of
counsel to the Placement Agent and (j) all other costs and expenses incident to the offering of the
Stock or the performance of the obligations of the Company under this Agreement (including, without
limitation, the fees and expenses of the Company’s counsel and the Company’s independent
accountants and the travel and other expenses incurred by Company personnel in connection with any
“road show” including, without limitation, any expenses advanced by the Placement Agent on the
Company’s behalf (which will be promptly reimbursed)).
7. Conditions to the Obligations of the Placement Agent and the Purchasers, and the Sale of
the Stock. The respective obligations of the Placement Agent hereunder and the Purchasers
under the Subscription Agreements, and the Closing of the sale of the Stock, are subject to the
accuracy, when made, at the Applicable Time and on the Closing Date, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration Statement or any
part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof
shall have been issued and no proceedings for that purpose or pursuant to Section 8A under
the Securities Act shall have been initiated or to our knowledge threatened by the
Commission, and all requests for additional information on the part of the Commission (to be
included or incorporated by reference in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the reasonable satisfaction of the Placement
Agent; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing Prospectus,
if any, and the Prospectus shall have been filed with the Commission within the applicable
time period prescribed for such filing by, and in compliance with, the Rules and Regulations
and in accordance with 5(a), and the Rule 462(b) Registration Statement, if any,
shall have become effective immediately upon its filing with the Commission; and FINRA shall
have raised no objection to the fairness and reasonableness of the terms of this Agreement
or the transactions contemplated hereby.
(b) The Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of counsel for the
Placement Agent, is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to make the
statements therein not misleading, or that the General Disclosure Package, any Issuer Free
Writing Prospectus or any amendment or supplement thereto contains an untrue statement of
fact which, in the opinion of such counsel, is material or omits to state any fact which, in
the opinion of such counsel, is material and is necessary in order to make the statements,
in the light of the circumstances in which they were made, not misleading.
17
(c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of each of this Agreement, the Subscription Agreements, the Escrow
Agreement, the Stock, the Registration Statement, the General Disclosure Package, each
Issuer Free Writing Prospectus, if any, and the Prospectus and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Placement Agent, and the Company
shall have furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Husch Xxxxxxxxx Xxxxxxx LLP shall have furnished to the Placement Agent such
counsel’s written opinion, as counsel to the Company, addressed to the Placement Agent and
the Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to
the Placement Agent, and a statement confirming the absence of any material misstatements or
omissions in the Registration Statement or the General Disclosure Package, in form and
substance customary to transactions such as the Offering and reasonably satisfactory to the
Placement Agent.
(e) The Placement Agent shall have received from Proskauer Rose LLP, counsel for the
Placement Agent, such opinion or opinions, dated the Closing Date, with respect to such
matters as the Placement Agent may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for enabling them to pass upon such matters.
(f) At the time of the execution of this Agreement, the Placement Agent shall have
received from each of KPMG LLP and Deloitte & Touche LLP a letter, addressed to the
Placement Agent, executed and dated such date, in form and substance satisfactory to the
Placement Agent (i) confirming that they are an independent registered accounting firm with
respect to the Company and its subsidiaries within the meaning of the Securities Act and the
Rules and Regulations and PCAOB (in the case of KPMG, during the period covered by its
reports on the consolidated financial statements subject to its audits) and (ii) stating the
conclusions and findings of such firm, of the type ordinarily included in accountants’
“comfort letters” to underwriters, with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus.
(g) On the effective date of any post-effective amendment to any Registration Statement
and on the Closing Date, the Placement Agent shall have received a letter (the “Bring-Down
Letter”) from Deloitte & Touche LLP addressed to the Placement Agent and dated the Closing
Date confirming, as of the date of the Bring-Down Letter (or, with respect to matters
involving changes or developments since the respective dates as of which specified financial
information is given in the General Disclosure Package and the Prospectus, as the case may
be, as of a date not more than three (3) business days prior to the date of the Bring-Down
Letter), the conclusions and findings of such firm, of the type ordinarily included in
accountants’ “comfort letters” to underwriters, with respect to the financial information
and other matters covered by its letter delivered to the Placement Agent concurrently with
the execution of this Agreement pursuant to paragraph (f) of this Section 7.
18
(h) The Company shall have furnished to the Placement Agent and the Purchasers a
certificate, dated the Closing Date, of its Chief Executive Officer, its President or a Vice
President and its chief financial officer stating that (i) such officers have carefully
examined the Registration Statement, the General Disclosure Package, any Permitted Free
Writing Prospectus and the Prospectus and, in their opinion, the Registration Statement and
each amendment thereto, at the Applicable Time and as of the date of this Agreement and as
of the Closing Date did not include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, and the General Disclosure Package, as of the Applicable Time and as
of the Closing Date, any Permitted Free Writing Prospectus as of its date and as of the
Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective
date thereof and as of the Closing Date, did not include any untrue statement of a material
fact and did not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not misleading, (ii)
since the effective date of the Initial Registration Statement, no event has occurred which
should have been set forth in a supplement or amendment to the Registration Statement, the
General Disclosure Package or the Prospectus, (iii) to the best of their knowledge after
reasonable investigation, as of the Closing Date, the representations and warranties of the
Company in this Agreement are true and correct and the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, and (iv) there has not been, subsequent to the date of the
most recent audited financial statements included or incorporated by reference in the
General Disclosure Package, any material adverse change in the financial position or results
of operations of the Company and its subsidiaries, or any change or development that,
singularly or in the aggregate, would involve a material adverse change or a prospective
material adverse change, in or affecting the condition (financial or otherwise), results of
operations, business, assets or prospects of the Company and its subsidiaries taken as a
whole, except as set forth in the Prospectus.
(i) Since the date of the latest audited financial statements included in the General
Disclosure Package or incorporated by reference in the General Disclosure Package as of the
date hereof, (i) neither the Company nor any of its subsidiaries shall have sustained 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 in the General Disclosure Package, and
(ii) there shall not have been any change in the capital stock or long-term debt of the
Company nor any of its subsidiaries, or any change, or any development involving a
prospective change, in or affecting the business, general affairs, management, financial
position, stockholders’ equity or results of operations of the Company and its subsidiaries,
otherwise than as set forth in the General Disclosure Package, the effect of which, in any
such case described in clause (i) or (ii) of this paragraph (i), is, in the judgment
of the Placement Agent, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated in the General Disclosure Package.
19
(j) No action shall have been taken and no law, statute, rule, regulation or order
shall have been enacted, adopted or issued by any governmental agency or body which would
prevent the issuance or sale of the Stock or materially and adversely affect or potentially
materially and adversely affect the business or operations of the Company or its
subsidiaries; and no injunction, restraining order or order of any other nature by any
federal or state court of competent jurisdiction shall have been issued which would prevent
the issuance or sale of the Stock or materially and adversely affect or potentially
materially and adversely affect the business or operations of the Company or its
subsidiaries.
(k) Subsequent to the execution and delivery of this Agreement, the Company’s corporate
credit rating or the rating accorded the Company’s debt securities by Xxxxx’x Investor
Services (“Moody’s”) shall not have been downgraded below a rating of Baa2, or otherwise
downgraded by any other “nationally recognized statistical rating organization,” as that
term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations.
(l) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange, Nasdaq GM or the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the over-the-counter market,
shall have been suspended or materially limited, or minimum or maximum prices or maximum
range for prices shall have been established on any such exchange or such market by the
Commission, by such exchange or market or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal
or state authorities or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, (iii) the United States
shall have become engaged in hostilities, or the subject of an act of terrorism, or there
shall have been an outbreak of or escalation in hostilities involving the United States, or
there shall have been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general economic, political
or financial conditions (or the effect of international conditions on the financial markets
in the United States shall be such) as to make it, in the judgment of the Placement Agent,
impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms
and in the manner contemplated in the General Disclosure Package and the Prospectus.
(m) The NYSE shall have approved the Stock for listing therein, subject only to
official notice of issuance.
(n) The Placement Agent shall have received the written agreements, substantially in
the form of Exhibit B hereto, of the executive officers and directors of the Company
listed in Schedule B to this Agreement.
(o) The Company shall have entered into Subscription Agreements with each of the
Purchasers and such agreements shall be in full force and effect.
20
(p) The Company shall have entered into the Escrow Agreement and such agreement shall
be in full force and effect.
(q) Prior to the Closing Date, the Company shall have furnished to the Placement Agent
such further information, opinions, certificates, letters or documents as the Placement
Agent shall have reasonably requested.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Placement Agent.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless the Placement Agent, its affiliates
and each of its and their respective directors, officers, members, employees,
representatives and agents (including, without limitation Lazard Frères & Co. LLC, (which
will provide services to the Placement Agent) and its affiliates, and each of its and their
respective directors, officers, members, employees, representatives and agents and each
person, if any, who controls Lazard Frères & Co. LLC within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and each person, if any, who controls the
Placement Agent within the meaning of Section 15 of the Securities Act of or Section 20 of
the Exchange Act (collectively the “Placement Agent Indemnified Parties,” and each a
“Placement Agent Indemnified Party”) against any loss, claim, damage, expense or liability
whatsoever (or any action, investigation or proceeding in respect thereof), joint or
several, to which such Placement Agent Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability,
action, investigation or proceeding arises out of or is based upon (A) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any
Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto or document incorporated by reference
therein, (B) the omission or alleged omission to state in any Preliminary Prospectus, any
Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto or document incorporated by reference
therein, a material fact required to be stated therein or necessary to make the statements
therein not misleading, or (C) any breach of the agreements, representations and warranties
of the Company contained herein, and shall reimburse the Placement Agent Indemnified Party
promptly upon demand for any legal fees or other expenses reasonably incurred by that
Placement Agent Indemnified Party in connection with investigating, or preparing to defend,
or defending against, or appearing as a third party witness in respect of, or otherwise
incurred in connection with, any such loss, claim, damage, expense, liability, action,
investigation or proceeding, as such fees and 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, expense or liability arises out of or is based upon an untrue statement or alleged
untrue statement in, or omission or alleged omission from any
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Preliminary Prospectus, any Registration Statement or the Prospectus, or any such
amendment or supplement thereto, or any Issuer Free Writing Prospectus made in reliance upon
and in conformity with written information furnished to the Company by the Placement Agent
specifically for use therein, which information the parties hereto agree is limited to the
Placement Agent’s Information (as defined in Section 17). This indemnity agreement
is not exclusive and will be in addition to any liability, which the Company might otherwise
have and shall not limit any rights or remedies which may otherwise be available at law or
in equity to each Placement Agent Indemnified Party.
(b) The Placement Agent shall indemnify and hold harmless the Company and its
directors, its officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act (collectively the “Company Indemnified Parties” and each a “Company
Indemnified Party”) against any loss, claim, damage, expense or liability whatsoever (or any
action, investigation or proceeding in respect thereof), joint or several, to which such
Company Indemnified Party may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, expense, liability, action, investigation or proceeding arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and
Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any Preliminary Prospectus,
any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information furnished to
the Company by the Placement Agent specifically for use therein, which information the
parties hereto agree is limited to the Placement Agent’s Information as defined in
Section 17, and shall reimburse the Company for any legal or other expenses
reasonably incurred by such party in connection with investigating or preparing to defend or
defending against or appearing as third party witness in connection with any such loss,
claim, damage, liability, action, investigation or proceeding, as such fees and expenses are
incurred. Notwithstanding the provisions of this Section 8(b), in no event shall
any indemnity by the Placement Agent under this Section 8(b) exceed the total
compensation received by such Placement Agent in accordance with Section 2.5.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
such indemnifying party in writing of the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to notify an
indemnifying party shall not relieve it from any liability which it may have to an
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indemnified party otherwise than under this Section 8. If any such action
shall be brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to assume the
defense of such action with counsel reasonably satisfactory to the indemnified party (which
counsel shall not, except with the written consent of the indemnified party, be counsel to
the indemnifying party). After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such action, except as provided herein, the
indemnifying party shall not be liable to the indemnified party under Section 8 for
any legal or other expenses subsequently incurred by the indemnified party in connection
with the defense of such action other than reasonable costs of investigation; provided,
however, that any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense of such action but the fees and expenses of
such counsel (other than reasonable costs of investigation) shall be at the expense of such
indemnified party unless (i) the employment thereof has been specifically authorized in
writing by the Company in the case of a claim for indemnification under Section 8(a)
or Section 2.6 or Placement Agent in the case of a claim for indemnification under
Section 8(b), (ii) such indemnified party shall have been advised by its counsel in
writing that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party, or (iii) the indemnifying
party has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party within a reasonable period of time after notice of the
commencement of the action or the indemnifying party does not diligently defend the action
after assumption of the defense, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to assume the
defense of (or, in the case of a failure to diligently defend the action after assumption of
the defense, to continue to defend) such action on behalf of such indemnified party and the
indemnifying party shall be responsible for legal or other expenses subsequently incurred by
such indemnified party in connection with the defense of such action; provided, however,
that the indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified parties (in
addition to any local counsel), which firm shall be designated in writing by Placement Agent
if the indemnified parties under this Section 8 consist of any Placement Agent
Indemnified Party or by the Company if the indemnified parties under this Section 8
consist of any Company Indemnified Parties. Subject to this Section 8(c), the
amount payable by an indemnifying party under Section 8 shall include, but not be
limited to, (x) reasonable legal fees and expenses of counsel to the indemnified party and
any other expenses in investigating, or preparing to defend or defending against, or
appearing as a third party witness in respect of, or otherwise incurred in connection with,
any action, investigation, proceeding or claim, and (y) all amounts paid in settlement of
any of the foregoing. No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of judgment with respect
to any pending or threatened action or any claim
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whatsoever, in respect of which indemnification or contribution could be sought under
this Section 8 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party in form and substance reasonably
satisfactory to such 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. Subject to the provisions of the
following sentence, no indemnifying party shall be liable for settlement of any pending or
threatened action or any claim whatsoever that is effected without its written consent
(which consent shall not be unreasonably withheld or delayed), but if settled with its
written consent, if it is finally determined that its consent has been unreasonably withheld
or delayed or if there be a final judgment for the plaintiff in any such matter, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment. In addition, if at
any time an indemnified party shall have requested that an indemnifying party reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated herein effected without its
written consent if (i) such settlement is entered into more than sixty (60) days after
receipt by such indemnifying party of the request for reimbursement, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least forty five (45)
days prior to such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to the date of
such settlement.
(d) If the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under Section 8(a) or Section
8(b), then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid, payable or otherwise incurred by such indemnified
party as a result of such loss, claim, damage, expense or liability (or any action,
investigation or proceeding in respect thereof), as incurred, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company on the one
hand and the Placement Agent on the other hand from the offering of the Stock, or (ii) if
the allocation provided by clause (i) of this Section 8(d) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) of this Section 8(d) but also the relative fault
of the Company on the one hand and the Placement Agent on the other with respect to the
statements, omissions, acts or failures to act which resulted in such loss, claim, damage,
expense or liability (or any action, investigation or proceeding in respect thereof) as well
as any other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Placement Agent on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the offering of
the Stock purchased under this Agreement (before deducting expenses) received by the Company
bear to the total discounts and commissions received by the Placement Agent in connection
with the Offering, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the Placement Agent on
the other shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact
24
relates to information supplied by the Company on the one hand or the Placement Agent
on the other, the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement, omission, act or failure to
act; provided that the parties hereto agree that the written information furnished to the
Company by the Placement Agent for use in the Preliminary Prospectus, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto, consists solely of
the Placement Agent’s Information as defined in Section 17. The Company and the
Placement Agent agree that it would not be just and equitable if contributions pursuant to
this Section 8(d) were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the loss,
claim, damage, expense, liability, action, investigation or proceeding referred to above in
this Section 8(d) shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, preparing to defend or defending against or appearing as a
third party witness in respect of, or otherwise incurred in connection with, any such loss,
claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the
provisions of this Section 8(d), the Placement Agent shall not be required to
contribute any amount in excess of the total compensation received by the Placement Agent in
accordance with Section 2.5 less the amount of any damages which the Placement Agent
has otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement, omission or alleged omission, act or alleged act or failure to act or alleged
failure to act. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
9. Termination. The obligations of the Placement Agent and the Purchasers hereunder and
under the Subscription Agreements may be terminated by the Placement Agent, in its absolute
discretion by notice given to the Company prior to delivery of and payment for the Stock if, prior
to that time, any of the events described in Sections 7(i), 7(j) or 7(l)
have occurred or if the Purchasers shall decline to purchase the Stock for any reason permitted
under this Agreement or the Subscription Agreements.
10. Reimbursement of Placement Agent’s Expenses. Notwithstanding anything to the
contrary in this Agreement, if (a) this Agreement shall have been terminated pursuant to
Section 9, (b) the Company shall fail to tender the Stock for delivery to the Purchasers
for any reason not permitted under this Agreement, (c) the Purchasers shall decline to purchase the
Stock for any reason permitted under this Agreement or (d) the sale of the Stock is not consummated
because any condition to the obligations of the Purchasers or the Placement Agent set forth herein
is not satisfied or because of the refusal, inability or failure on the part of the Company to
perform any agreement herein or to satisfy any condition or to comply with the provisions hereof,
then in addition to the payment of amounts in accordance with Section 6, the Company shall
reimburse the Placement Agent for the fees and expenses of the Placement Agent’s counsel and for
such other out-of-pocket expenses as shall have been reasonably incurred by them in connection with
this Agreement and the proposed purchase of the Stock, and upon demand the Company shall pay the
full amount thereof to the Placement Agent.
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11. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the Placement Agent’s responsibility to the Company is solely contractual in
nature, the Placement Agent has been retained solely to act as Placement Agent in connection
with the Offering and no fiduciary, advisory or agency relationship between the Company and
the Placement Agent has been created in respect of any of the transactions contemplated by
this Agreement, irrespective of whether the Placement Agent or Lazard Frères & Co. LLC has
advised or is advising the Company on other matters;
(b) the price of the Stock set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Placement Agent, and the Company
is capable of evaluating and understanding, and understands and accepts, the terms, risks
and conditions of the transactions contemplated by this Agreement;
(c) it has been advised that the Placement Agent and Lazard Frères & Co. LLC and their
affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and that the Placement Agent has no obligation to disclose
such interests and transactions to the Company by virtue of any fiduciary, advisory or
agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims it may have against
the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty and
agrees that the Placement Agent shall have no liability (whether direct or indirect) to the
Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on behalf of or in right of the Company, including stockholders, employees or
creditors of the Company.
12. Successors; Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Placement Agent, the Company, and their respective
successors and assigns. This Agreement shall also inure to the benefit of Lazard Frères & Co. LLC,
the Purchasers, and each of their respective successors and assigns, which shall be third party
beneficiaries hereof. Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, other than the persons mentioned in the preceding sentences, any
legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of no other person;
except that the representations, warranties, covenants, agreements and indemnities of the Company
contained in this Agreement shall also be for the benefit of the Placement Agent Indemnified
Parties and the indemnities of the Placement Agent shall be for the benefit of the Company
Indemnified Parties. It is understood that the Placement Agent’s responsibility to the Company is
solely contractual in nature and the Placement Agent does not owe the Company, or any other party,
any fiduciary duty as a result of this Agreement.
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13. Survival of Indemnities, Representations, Warranties, etc. The respective
indemnities, covenants, agreements, representations, warranties and other statements of the Company
and the Placement Agent, as set forth in this Agreement or made by them respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any investigation made by or
on behalf of the Placement Agent, the Company, the Purchasers or any person controlling any of them
and shall survive delivery of and payment for the Stock. Notwithstanding any termination of this
Agreement, including without limitation any termination pursuant to Sections 9 or
10, the indemnity and contribution agreements contained in Section 8 and the
covenants, representations, warranties set forth in this Agreement shall not terminate and shall
remain in full force and effect at all times.
14. Notices. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Placement Agent, shall be delivered or sent by mail, telex, facsimile
transmission or email to Lazard Capital Markets LLC, Attention: General Counsel, Fax:
000-000-0000; and
(b) if to the Company, shall be delivered or sent by mail, telex, facsimile
transmission or email to H&R Block, Inc. Attention: General Counsel, Fax: (000) 000-0000.
provided, however, that any notice to the Placement Agent pursuant to Section 8 shall be
delivered or sent by mail, telex or facsimile transmission to the Placement Agent at its address
set forth in its acceptance telex to the Placement Agent, which address will be supplied to any
other party hereto by the Placement Agent upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof, except that any such statement,
request, notice or agreement delivered or sent by email shall take effect at the time of
confirmation of receipt thereof by the recipient thereof.
15. Definition of Certain Terms. For purposes of this Agreement, (a) “business day”
means any day on which the New York Stock Exchange, Inc. is open for trading and (b) “subsidiary”
has the meaning set forth in Rule 405 of the Rules and Regulations.
16. Governing Law, Agent for Service and Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, including without limitation
Section 5-1401 of the New York General Obligations Law. No legal proceeding relating to this
Agreement or the transactions contemplated hereby may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and County of New York or
in the United States District Court for the Southern District of New York, which courts shall have
jurisdiction over the adjudication of such matters, and the Company and the Placement Agent each
hereby consent to the jurisdiction of such courts and personal service with respect thereto. The
Company and the Placement Agent each hereby waive all right to trial by jury in any legal
proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement. The Company and the Placement Agent agree that a final judgment in any such
legal proceeding brought in any such court shall be conclusive and binding upon the Company and the
Placement Agent and may be
27
enforced in any other courts in the jurisdiction of which the Company or the Placement Agent
is or may be subject, by suit upon such judgment.
17. Placement Agent’s Information. The parties hereto acknowledge and agree that, for
all purposes of this Agreement, the Placement Agent’s Information consists solely of the following
information in the Prospectus: (i) the last paragraph on the front cover page concerning the terms
of the offering by the Placement Agent; and (ii) the statements concerning the Placement Agent
contained in the first and sixth paragraphs under the heading “Plan of Distribution.”
18. Partial Unenforceability. The invalidity or unenforceability of any section,
paragraph, clause or provision of this Agreement shall not affect the validity or enforceability of
any other section, paragraph, clause or provision hereof. If any section, paragraph, clause or
provision of this Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
19. General. This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter hereof. In this Agreement, the
masculine, feminine and neuter genders and the singular and the plural include one another. The
section headings in this Agreement are for the convenience of the parties only and will not affect
the construction or interpretation of this Agreement. This Agreement may be amended or modified,
and the observance of any term of this Agreement may be waived, only by a writing signed by the
Company and the Placement Agent.
20. Counterparts. This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument and such signatures may be delivered by facsimile.
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If the foregoing is in accordance with your understanding of the agreement between the Company
and the Placement Agent, kindly indicate your acceptance in the space provided for that purpose
below.
| Very truly yours, H&R BLOCK, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date
first above written:
first above written:
| LAZARD CAPITAL MARKETS LLC | ||||
By: |
||||
Name: |
||||
Title: |
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