11,750,000 Shares HOVNANIAN ENTERPRISES, INC. Class A Common Stock UNDERWRITING AGREEMENT
Exhibit 1.3
11,750,000 Shares
HOVNANIAN ENTERPRISES, INC.
Class A Common Stock
February 3, 2011
X.X. XXXXXX SECURITIES LLC
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
As Representatives of the Several Underwriters,
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
As Representatives of the Several Underwriters,
c/o X.X. XXXXXX SECURITIES LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Hovnanian Enterprises, Inc., a Delaware corporation (the “Company”), proposes
to issue and sell to the several Underwriters named in Schedule A hereto (the “Underwriters”)
11,750,000 shares (“Underwritten Securities”) of its Class A Common Stock, $0.01 par value per
share (“Common Stock”), and also proposes to issue and sell to the Underwriters, at the option of
the Underwriters, an aggregate of not more than 1,762,500 additional shares (“Optional Securities”)
of its Common Stock as set forth below. The Underwritten Securities and the Optional Securities
are herein collectively called the “Securities”.
2. Representations and Warranties of the Company. The Company represents and warrants to, and
agrees with the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-171349) relating to the
Securities, including a base prospectus dated January 28, 2011 (the “Base Prospectus”), has
been filed with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Act”) and has been declared effective under the
Act. For purposes of this agreement (the “Agreement”), “Effective Date” means the “effective
date of the registration statement” (within the meaning of Rule 158(c) under the Act) of the
Registration Statement or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement. Such registration statement, as
amended at the Effective Date, including the information, if any, deemed pursuant to Rule
430B under the Act to be part of the registration statement at the time of its effectiveness
(“Rule 430 Information”), is hereinafter referred to as the “Registration Statement.” The
term “Preliminary Prospectus” means each preliminary prospectus supplement to the Base
Prospectus which is used prior to the filing of the Prospectus (as defined below), together
with the Base Prospectus, and the term “Prospectus” means the prospectus supplement in the
form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Act) in connection with confirmation of sales of the Securities, together with the Base
Prospectus. Any reference in this Agreement to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the effective date of the
Registration Statement or the date of such Base Prospectus, Preliminary Prospectus or the
Prospectus, as the case may be and any reference to “amend”, “amendment” or “supplement”
with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such
date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “1934 Act”) that are deemed to be incorporated
by reference therein. As of the Effective Date, the Company was eligible to use Form S-3
under the Act. No stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the
Act against the Company or related to the offering shall have been instituted or, to the
knowledge of the Company, shall be contemplated by the Commission.
(b) At or prior to 8:00 A.M. on February 4, 2011 (the “Time of Sale”), the Company had
prepared the following information (collectively, the “Time of Sale Information”): a
Preliminary Prospectus dated January 31, 2011 and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Act) listed on Schedule B hereto.
(c) The Time of Sale Information, when taken together as a whole, at the Time of Sale
did not, and at the Closing Date will not, contain any untrue statement of a material fact
or 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 that the
Company makes no representation and warranty with respect to any statements or omissions
made in reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in such Time of Sale Information.
(d) Other than the Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in their capacity as such) has
not made, used, prepared, authorized, approved or referred to and will not prepare, make,
use, authorize, approve or refer to any “written communication” (as defined in Rule 405
under the Act) that constitutes an offer to sell or solicitation of an offer to buy the
Securities (each such communication by the Company or its agents and representatives (other
than a communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”)
other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Act or Rule 134 under the Act or (ii) the documents listed on Schedule B hereto, each
electronic road show and any other written communications approved in writing in advance by
the Representatives. Each such Issuer Free Writing Prospectus complied in all material
respects with the Act, has been filed in accordance with the Act (to the extent required
thereby) and, when taken together with the Time of Sale Information accompanying, or
delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or 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 that the Company makes no
representation and warranty with respect to any statements or omissions made in each such
Issuer Free Writing Prospectus in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing Prospectus.
(e) (i) On the Effective Date, the Registration Statement conformed in all material
respects to the requirements of the Act and the rules and regulations of the Commission
under the Act (“Rules and Regulations”) and did not include 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 and (ii) on the date of this Agreement, the
Registration Statement conforms, and at the time of filing of the Prospectus pursuant to
Rule 424(b) under the Act, the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue statement of a material fact
or omits, or will omit, to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading except that the foregoing
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does not apply to statements in or omissions from the Registration Statement or the Prospectus
based upon written information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 8(b) hereof.
(f) The documents incorporated by reference in the Time of Sale Information and the
Prospectus, at the time they were or hereafter are filed with the Commission and except as
otherwise subsequently disclosed therein, complied and will comply in all material respects
with the requirements of the 1934 Act and, when read together and with the other information
in the Time of Sale Information and the Prospectus, 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 in order to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(g) Each of the Company and its subsidiaries has been duly incorporated or formed, as
the case may be, is validly existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of its jurisdiction of
incorporation or organization and has the corporate power, or its equivalent in the case of
a limited partnership or limited liability company, and authority to carry on its business
as described in the Time of Sale Information and the Prospectus and to own, lease and
operate its properties, and each is duly qualified and is in good standing as a foreign
corporation, limited liability company or limited partnership, as the case may be,
authorized to do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”).
(h) As of the date hereof, $50.0 million of Underwritten Securities and $57.5 million
of Optional Securities have been duly authorized and all other outstanding shares of capital
stock of the Company have been duly authorized; the authorized equity capitalization of the
Company is as set forth in the Time of Sale Information; all outstanding shares of capital
stock of the Company are, and, when the Securities have been delivered and paid for in
accordance with this Agreement on each of the Closing Date and any other settlement date for
the Optional Securities, such Securities will have been, validly issued, fully paid and
nonassessable, will conform to the description of such Securities contained in the Time of
Sale Information and the Prospectus; and the stockholders of the Company have no preemptive
rights (except, for the avoidance of doubt, pursuant to the Rights Plan of the Company, as
described in the Time of Sale Information) with respect to the Securities.
(i) All of the outstanding shares of capital stock of each of the Company’s direct and
indirect subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature (each, a “Lien”) other than Liens securing obligations under (A)
Hovnanian’s (as defined below) 105/8% Senior Secured Notes due 2016
issued pursuant to the indenture, dated as of October 20, 2009, by and among the Company,
Hovnanian, the other guarantors named therein and Wilmington Trust Company, as trustee, (B)
Hovnanian’s 111/2% Senior Secured Notes due 2013 issued pursuant to the indenture, dated as of
May 27, 2008, by and among the Company, Hovnanian, the other guarantors named therein and
Wilmington Trust Company (as successor to Deutsche Bank Trust Company), as trustee, (C)
Hovnanian’s 18% Senior Secured Notes due 2017 issued pursuant to the indenture, dated as of
December 3, 2008, by and among the Company, Hovnanian, the other guarantors named therein
and Wilmington Trust Company, as trustee and (D) “Permitted Liens” as defined in such
aforementioned indentures.
(j) This Agreement has been duly authorized, executed and delivered by the Company.
(k) None of the Company or any of its direct or indirect subsidiaries is in violation
of its respective charter or by-laws or applicable organizational documents, as the case may
be, or in default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan
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agreement, mortgage, lease or other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their respective property is
bound.
(l) The execution, delivery and performance of this Agreement, compliance by the
Company with all provisions hereof and the consummation of the transactions contemplated
hereby and thereby will not (i) require any consent, approval, authorization or other order
of, or qualification with, any court or governmental body or agency (except such consents as
have been obtained under the Act and except as may be required under securities or Blue Sky
laws of the various states), (ii) conflict with or constitute a breach of any of the terms
or provisions of, or a default under, the charter, by-laws or applicable organizational
documents of the Company or any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or their respective property is bound, (iii) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of any court or
any governmental body or agency having jurisdiction over the Company or any of its
subsidiaries or their respective property, (iv) result in the imposition or creation of (or
the obligation to create or impose) a Lien under, any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, or (v) result in the termination,
suspension or revocation of any Authorization (as defined below) of the Company or any of
its subsidiaries or result in any other impairment of the rights of the holder of any such
Authorization.
(m) Except as disclosed in the Time of Sale Information and the Prospectus, there are
no legal or governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is or could be a party or to which any of their respective property is or
could be subject, which might result, singly or in the aggregate, in a Material Adverse
Effect.
(n) Except as disclosed in the Time of Sale Information and the Prospectus, neither the
Company nor any of its subsidiaries has violated (i) any foreign, federal, state or local
law or regulation relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) any provisions of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), or (iii) any provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except with respect to (i) and (ii), for such violations
which, singly or in the aggregate, would not have a Material Adverse Effect.
(o) The Company and each of its subsidiaries maintains insurance covering their
properties, assets, operations, personnel and businesses, and, in the good faith estimate of
management, such insurance is of such type and in such amounts as is in accordance with
customary industry practice in the locations where the Company and each subsidiary conduct
operations, taking into account the costs and availability of such insurance.
(p) The Company and its officers and directors, in their capacities as such, are in
compliance in all material respects with the provisions of the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations promulgated thereunder.
(q) The Company has not taken, directly or indirectly, any action designed to or that
has constituted or that might reasonably be expected to cause or result in, under the 1934
Act or otherwise, stabilization or manipulation of the price of the Common Stock or any
“reference security” of the Company (as defined in Rule 100 under the Act) to facilitate the
sale or resale of the Securities in connection with the offering contemplated hereby.
(r) Except as disclosed in the Time of Sale Information and the Prospectus, each of the
Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an “Authorization”) of, and has made all filings
with and notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without
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limitation, under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business, except where the failure
to have any such Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full
force and effect and each of the Company and its subsidiaries is in compliance with all the
terms and conditions thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder of any such
Authorization; except where such failure to be valid and in full force and effect or to be
in compliance, the occurrence of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a Material Adverse Effect.
(s) Each of Deloitte & Touche LLP and Ernst & Young LLP, each of which has certified
financial statements incorporated by reference in the Time of Sale Information and the
Prospectus, is an independent registered public accounting firm with respect to the Company
as required by the Act and the 1934 Act.
(t) The historical financial statements of the Company on Form 10-K/A, together with
related notes, incorporated by reference in the Prospectus, Time of Sale Information and the
Registration Statement (and any amendment or supplement thereto) present fairly the
consolidated financial position, results of operations and changes in financial position of
the Company and its subsidiaries on the basis stated in the documents incorporated by
reference in the Prospectus, Time of Sale Information and the Registration Statement at the
respective dates or for the respective periods to which they apply; such statements and
related notes have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth or incorporated by reference
in the Prospectus, Time of Sale Information and Registration Statement (and any amendment or
supplement thereto) are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the Company;
and the historical financial statements, together with related notes incorporated by
reference in the Prospectus, Time of Sale Information and Registration Statement (and any
amendment or supplement thereto) meet the requirements of the Rules and Regulations and the
1934 Act.
(u) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the net proceeds thereof as described in the Time of Sale
Information and the Prospectus, will not be, an “investment company,” as such term is
defined in the Investment Company Act of 1940, as amended.
(v) No “nationally recognized statistical rating organization” as such term is defined
under Section 3(a)(62) under the 1934 Act has indicated to the Company that it is
considering (i) the downgrading, suspension, or withdrawal of, or any review for a possible
change that does not indicate the direction of the possible change in, any rating so
assigned or (ii) any change in the outlook (other than a positive change) for any rating of
the Company or any securities of the Company or X. Xxxxxxxxx Enterprises, Inc., a California
corporation (“Hovnanian”).
(w) No debt of any subsidiary of the Company (other than Hovnanian) is rated by a
nationally recognized statistical organization.
(x) Since the respective dates as of which information is given in the Prospectus and
Time of Sale Information except as disclosed in the Prospectus and Time of Sale Information
(exclusive of any amendments or supplements thereto subsequent to the date of this
Agreement), (i) there has not occurred any material adverse change or any development
involving a prospective material adverse change in the condition, financial or otherwise, or
the earnings, business, management or operations of the Company and its subsidiaries, taken
as a whole, (ii) there has not been any material adverse change or any development involving
a prospective material adverse change in the capital stock or in the long-term debt of the
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Company or any of its subsidiaries, and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or contingent.
(y) The Company is not an ineligible issuer, as defined under the Act, at the times
specified in the Act in connection with the offering of the Securities. The Company has
paid the registration fee for this offering as required under the Act.
(z) The Company maintains a system of “internal control over financial reporting” (as
such term is defined in Rule 13a-15(f) under the 0000 Xxx) that complies with the
requirements of the 1934 Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of the financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles; and the Company’s internal control over financial reporting is effective in all
material respects to perform the functions for which it was established and the Company is
not aware of any material weaknesses in its internal control over financial reporting.
(aa) The Company maintains “disclosure controls and procedures” (as such term is
defined in Rule 13a-15(e) under the 1934 Act); such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were established.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters pursuant to the last sentence of Section 3(d) or Section 7 of
this Agreement shall be deemed a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
3. Purchase, Sale and Delivery of the Securities. (a) On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters the Underwritten Securities and the
Underwriters agree, severally and not jointly, to purchase from the Company, the respective number
of Underwritten Securities set forth opposite such Underwriter’s name in Schedule A hereto at a
purchase price of $4.085 per share.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to 1,762,500 shares of Optional Securities at the same
purchase price per share as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised in whole or in part at any time on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the Company setting
forth the number of Optional Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of Optional Securities to be purchased by each
Underwriter shall be the same percentage of the total number of Optional Securities to be purchased
by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
(c) Delivery of and payment for the Underwritten Securities and the Optional Securities (if
the option provided for in Section 3(b) hereof shall have been exercised on or before 4:30 P.M. on
the third business day immediately preceding the Closing Date) shall be made on February 9, 2011 at
10:00 A.M. or at such time on such later date not more than three business days after the foregoing
date as the Representatives shall designate, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 9 hereof (such date and time
of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of
the Securities shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the Underwritten Securities and the
Optional Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
(d) If the option provided for in Section 3(b) hereof is exercised after 4:30 P.M. on the
third business day immediately preceding the Closing Date, the Company will deliver the Optional
Securities (at the expense of the
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Company) to the Representatives, at the offices of Xxxxx Xxxx & Xxxxxxxx LLP, on the date specified
by the Representatives (which shall be within three Business Days after exercise of said option,
unless said option is exercised after 4:30 P.M. in which case such date shall be within four
business days of said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the Optional Securities occurs after the Closing Date, the Company
will deliver to the Representatives on the settlement date for the Optional Securities, and the
obligation of the Underwriters to purchase the Optional Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to Section 7 hereof.
4. Offering by Underwriters. (a) It is understood that the several Underwriters propose to
offer the Securities for sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(a) The Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (2) of Rule 424(b) under the Act not later than the second
business day following the execution and delivery of this Agreement) (or, if applicable,
subparagraph (5)) and will file any Free Writing Prospectus pursuant to and in accordance
with Rule 433 under the Act within the required time period. The Company will advise the
Representatives promptly of any such filing pursuant to Rule 424(b) or Rule 433 under the
Act.
(b) The Company will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement, Time of Sale Information or the Prospectus and will
not effect such amendment or supplement without the Representatives’ consent (such consent
not to be unreasonably withheld); and the Company will also advise the Representatives
promptly of the effectiveness of any amendment or supplement of the Registration Statement,
Time of Sale Information or the Prospectus and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement, as it may be amended or
supplemented, proceeding under Section 8A of the Act, and will use its reasonable best
efforts to prevent the issuance of any such stop order or objection and to obtain as soon as
possible its lifting or withdrawal, if issued.
(c) Before preparing, using, authorizing, approving, referring to or filing any Issuer
Free Writing Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time that the Registration
Statement becomes effective, the Company will furnish to the Representatives and counsel for
the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not prepare, use, authorize, approve, refer to or file any
such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to
which the Representatives reasonably object.
(d) If, at any time when a prospectus relating to the Securities is required to be (or
but for the exemption in Rule 172 under the Act would be required to be) delivered under the
Act in connection with sales by any Underwriter or dealer, any event occurs as a result of
which the Time of Sale Information, Prospectus or any Free Writing Prospectus as then
amended or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary at any time
to amend the Time of Sale Information, Prospectus or any Free Writing Prospectus to comply
with the Act, the Company will promptly notify the Representatives of such event and will
promptly prepare and file with the Commission, at the Company’s own expense, an amendment or
supplement that will correct such statement or omission or an amendment that will effect
such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of,
any such amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 7 hereof.
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(e) As soon as practicable, but not later than the Availability Date (as defined
below), the Company will make generally available to its securityholders an earnings
statement (which need not be audited) covering a period of at least 12 months beginning
after the Effective Date that will satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, “Availability Date” means the 40th day after the end
of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date,
except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year,
“Availability Date” means the 60th day after the end of such fourth fiscal quarter.
(f) The Company will furnish to the Representatives copies of the Registration
Statement (two of which will be signed and will include all exhibits), if requested by the
Representatives, each related Preliminary Prospectus, and, so long as a prospectus relating
to the Securities is required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements to such documents
and each Free Writing Prospectus, in each case in such quantities as the Representatives
reasonably request. The Prospectus shall be so furnished as soon as practicable but in no
event later than the second business day following the execution and delivery of this
Agreement. All other documents shall be so furnished as soon as available. The Company will
pay the expenses of printing and distributing to the Underwriters all such documents.
(g) The Company will cooperate with the Underwriters and counsel to the Underwriters in
connection with the qualification of the Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as required for the
distribution; provided, however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in which it is
not now so qualified or to take any action that would subject it to general consent to
service of process or taxation other than as to matters and transactions relating to the
Registration Statement and the Prospectus, in any jurisdiction in which it is not now so
subject.
(h) So long as any Securities remain outstanding, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of the annual report to stockholders
for such year; and so long as any Securities remain outstanding, the Company will furnish to
the Representatives (i) during any period in which the Company is not subject to Section 13
or 15(d) of the 1934 Act, as soon as practicable, a copy of each report and any definitive
proxy statement of the Company filed with the Commission under the 1934 Act or mailed to
stockholders, and (ii) from time to time, such other information concerning the Company as
the Representatives may reasonably request.
(i) The Company will pay or cause to be paid all expenses incident to the performance
of the obligations of the Company under this Agreement, including any filing fees and other
expenses (including fees and disbursements of counsel to the Company) incurred in connection
with qualification of the Securities for sale under the securities or blue sky laws of the
various states, any travel expenses of the Company’s officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with prospective
purchasers of the Securities and expenses incurred in distributing the Prospectus, any Free
Writing Prospectus and any Time of Sale Information (including any amendments and
supplements thereto) to the Underwriters.
(j) The Company will not, without the prior written consent of the X.X. Xxxxxx
Securities LLC and Credit Suisse Securities (USA) LLC, offer, sell, contract to sell,
pledge, or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the 1934 Act, any other shares of Common Stock or any
securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or
publicly announce an intention to effect any such transaction, until after 90 days from the
date
8
hereof, except for (i) the registration of the Securities and the sales to the Underwriters
pursuant to this Agreement, (ii) the issuance of tangible equity units (and the shares of
Common Stock issuable upon settlement thereof) in the Units Offering as described in the Time
of Sale Information and the Prospectus, (iii) the issuance and sale of Common Stock or options
exercisable into Common Stock pursuant to any employee benefit or incentive plan, stock
ownership plan or dividend reinvestment plan of the Company in effect at the Time of Sale and
(iv) the issuance of Common Stock upon the conversion of securities or the exercise of
warrants outstanding at the Time of Sale.
(k) The Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the Commission in
accordance with Rule 433 under the Act.
6. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) Unless it has obtained the prior written consent of the Company, it has not made
and unless it will obtain the prior written consent of the Company, it will not make any
offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or
that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under
the Act) required to be filed by the Company with the Commission or retained by the Company
under Rule 433 under the Act, provided that the prior written consent of the parties hereto
shall be deemed to have been given in respect of the information contained in any Free
Writing Prospectus referred to in Schedule B hereto.
(b) It has not and will not distribute any Underwriter Free Writing Prospectus in a
manner reasonably designed to lead to its broad unrestricted dissemination. For purposes of
this Section 6(b), “Underwriter Free Writing Prospectus” shall mean a “free writing
prospectus” that contains no “issuer information” (as defined in Rule 433(h)(2) under the
Act) that was not included (including through incorporation by reference) in the Preliminary
Prospectus or a previously filed Issuer Free Writing Prospectus.
(c) It is not subject to any pending proceeding under Section 8A of the Act with
respect to the offering (and will promptly notify the Company if any such proceeding against
it is initiated during the Prospectus Delivery Period).
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Securities on the Closing Date will be subject to the
accuracy when made and on the Closing Date of the representations and warranties on the part of the
Company herein; provided that with respect to Section 2(b), such representation and warranty shall
be with respect to all Securities, to the accuracy of the statements of the Company officers made
pursuant to the provisions hereof, to the performance by the Company in all material respects of
its respective obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received, on the date hereof and on the Closing
Date, a letter dated such date, in form and substance satisfactory to you, from each of
Deloitte & Touche LLP, an independent registered public accounting firm with respect to the
Company and Ernst & Young LLP, an independent registered public accounting firm with respect
to the Company, containing the information and statements of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement, the Prospectus and the Time of Sale Information.
(b) The Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) hereof. No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that purpose or
pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective change, in the
condition (financial or other),
9
business, properties or results of operations of the Company and its subsidiaries taken as
one enterprise that, in the reasonable judgment of the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities; (ii) any downgrading in the rating
of any debt securities of the Company or Hovnanian by any “nationally recognized statistical
rating organization” (as defined under Section 3(a)(62) of the 1934 Act), or any public
announcement that any such organization has under surveillance or review its rating of any
debt securities of Hovnanian or the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible downgrading, of such
rating) or any announcement that the Company or Hovnanian has been placed on negative
outlook; (iii) any change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the reasonable
judgment of the Representatives, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Securities, whether in the primary market or in
respect of dealings in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of any
securities of Hovnanian or the Company on any exchange or in the over-the-counter market;
(v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major
disruption of settlements of securities or clearance services in the United States if, in
the reasonable judgment of the Representatives, the effect of such disruption makes it
impractical or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Securities; or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving, the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the reasonable
judgment of the Representatives, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion of Xxxxx X. Xxxxxxxx, Esq.,
Senior Vice President and General Counsel of the Company, dated the Closing Date,
substantially to the effect as set forth in Exhibit A.
(e) The Representatives shall have received an opinion and a negative assurance
statement, dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Company, substantially to the effect as set forth in Exhibits B-1 and B-2, respectively.
(f) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for
the Underwriters, an opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(g) The Representatives shall have received a certificate, dated the Closing Date and
signed by J. Xxxxx Xxxxxx, in his capacity as Executive Vice President and Chief Financial
Officer of the Company (i) confirming the matters set forth in Sections 2(v), 2(w)
and 2(x), (ii) confirming that all the representations and warranties of the Company and its
subsidiaries herein contained are true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date, (iii) that, in all material respects,
the Company has complied with all of the agreements and satisfied all of the conditions
herein contained and required to be complied with or satisfied by the Company on or prior to
the Closing Date, (iv) to his knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose or pursuant to
Section 8A under the Act have been instituted or are contemplated by the Commission and (v)
since the date of the most recent financial statements incorporated by reference in the Time
of Sale Information and the Prospectus (exclusive of any supplement thereto), there has been
no material adverse effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, except as set forth in or
contemplated in the Time of Sale Information and the Prospectus (exclusive of any supplement
thereto).
(h) The Representatives shall have received lockup letters in the form of Exhibit D
hereto from each of the executive officers and directors of the Company.
10
(i) The Securities shall have been listed and admitted and authorized for trading on
the New York Stock Exchange, and satisfactory evidence of such actions shall have been
provided to the Representatives.
The Company will furnish the Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives reasonably request. The Representatives
may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder.
8. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which any Underwriter may become subject, under the Act or the
1934 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any Time of Sale Information, or arise
out of or are based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements therein (in the case of
the Prospectus, any Issuer Free Writing Prospectus or any Time of Sale Information, in the light of
the circumstances under which they were made) not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such documents made in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter through the Representatives
consists of the information described as such in Section 8(b) hereof.
(b) Each Underwriter will severally and not jointly indemnify and hold harmless the Company
and its directors and officers and each person, if any, who controls the Company within the meaning
of Section 15 of the Act, against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or the 1934 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any
Time of Sale Information, or arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, any Issuer Free Writing Prospectus or any Time of Sale
Information, in the light of the circumstances under which they were made) not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Representatives specifically
for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such information furnished
by any Underwriter through the Representatives consists of the following information in the
Prospectus: the fifth and ninth through eleventh paragraphs under the caption “Underwriting”;
provided, however, that the Underwriters shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Company’s failure to perform its obligations under
Section 5(f) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under Section 8(a) or 8(b) hereof, notify the indemnifying
party of the commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under Section 8(a) or 8(b) hereof except to the
extent that it has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified party otherwise than
under Section 8(a) or 8(b) hereof. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly with any
11
other indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in respect of which
any indemnified party is or could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable or insufficient to
hold harmless an indemnified party under Section 8(a) or 8(b) hereof, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 8(a) or 8(b) hereof (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters from the Company under this
Agreement. The relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this Section 8(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim that is the subject of this Section 8(d).
Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Section 8(d)
to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability
that the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability that the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each
director and officer of the Company and to each person, if any, who controls the Company within the
meaning of the Act or the 1934 Act.
9. Default of Underwriters. If any Underwriter or Underwriters default(s) in its or their
obligations to purchase Securities hereunder on the Closing Date and the aggregate amount of
Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the aggregate amount of Securities that the Underwriters are obligated to purchase on
the Closing Date, the Representatives may make arrangements satisfactory to the Company for the
purchase of such Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase the Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase on the Closing Date. If
any Underwriter or Underwriters so default(s) and the number of Securities with respect to which
such default or defaults occur(s)
12
exceeds 10% of the number of Securities that the Underwriters are obligated to purchase on the
Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase
of such Securities by other persons are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 10 hereof. As used in this Agreement, the term “Underwriter” includes
any person substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective
indemnities, contribution agreements, representations, warranties and other statements of the
Company and the several Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment for the
Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or
on behalf of any Underwriter, the officers or directors of any Underwriter, any person controlling
any Underwriter, the Company, the officers or directors of the Company or any person controlling
the Company, (ii) acceptance of and payment for the Securities hereunder and (iii) termination of
this Agreement. If for any reason the Securities are not delivered by or on behalf of the Company
as provided herein (other than as a result of any termination of this Agreement pursuant to Section
7(c)(iii), (iv) (only to the extent there is a material suspension or material limitation of
trading of securities generally on the New York Stock Exchange or any setting of minimum prices for
trading on such exchange), (v), (vi) or (vii)), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and disbursements of counsel)
incurred by them. Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses that it has agreed to pay pursuant to Section 5(i) hereof. The Company also agrees
to reimburse the several Underwriters, their directors and officers and any persons controlling any
of the Underwriters for any and all fees and expenses (including, without limitation, the fees
disbursements of counsel) incurred by them in connection with enforcing their rights hereunder
(including, without limitation, their rights under Section 8 hereof).
11. Arm’s Length Relationship; No Fiduciary Duty. The Company acknowledges and agrees that
the Representatives are acting solely in the capacity of arm’s length contractual counterparties to
the Company with respect to the Securities (including in connection with determining the terms of
the offering contemplated by this Agreement) and not as a financial advisor, agent or fiduciary to
the Company or any other person. Additionally, the Representatives are not advising the Company or
any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of the transactions
contemplated by this Agreement, and the Representatives shall have no responsibility or liability
to the Company with respect thereto. Any review by the Representatives of the Company, the
transactions contemplated by this Agreement or other matters relating to such transactions will be
performed solely for the benefit of the Representatives and shall not be on behalf of the Company.
12. Notices. All communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to the Representatives c/o X.X. Xxxxxx
Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Equity Syndicate Desk, Fax: (000)
000-0000; Credit Suisse Securities (USA) LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attn:
LCD-IBD, Tel: 000-000-0000, Fax: 000-000-0000; Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxx Xxxxxx Xxxx, Xxx Xxxx, XX 00000, ATTN: Syndicate Department, with a copy to ECM Legal;
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: General Counsel,
Fax: 000-000-0000; or, if sent to the Company will be mailed, delivered or telegraphed and
confirmed to Hovnanian Enterprises, Inc., 000 Xxxx Xxxxx Xxxxxx, X.X. Xxx 000, Xxx Xxxx, Xxx Xxxxxx
00000, fax no. 000-000-0000 and confirmation number 732-747-7800, Attention: General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 8 hereof will be mailed,
delivered or telegraphed and confirmed to such Underwriter as set forth in Exhibit C.
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
13
14. Representation of Underwriters. The Representatives will act for the several Underwriters
in connection with this financing, and any action under this Agreement taken by the Representatives
will be binding upon all the Underwriters.
15. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
14
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, HOVNANIAN ENTERPRISES, INC. |
||||
| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President and General Counsel |
|||
Accepted as of the date first above written
X.X. Xxxxxx Securities LLC
Credit Suisse Securities (USA) LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Credit Suisse Securities (USA) LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Citigroup Global Markets Inc.
| By: X.X. XXXXXX SECURITIES LLC |
||||
| By | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
| By: CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice Chairman | |||
| By: | XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
|||
| By | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Managing Director | |||
| By: CITIGROUP GLOBAL MARKETS INC |
||||
| By | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
| Acting on behalf of themselves and the other several Underwriters. | ||||
16
Schedule A
| Number of | ||||
| Shares of | ||||
| Underwriter | Securities | |||
X.X. Xxxxxx Securities LLC |
3,133,725 | |||
Credit Suisse Securities (USA) LLC |
3,133,725 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
3,133,725 | |||
Citigroup Global Markets Inc. |
1,350,075 | |||
Xxxxx Fargo Securities, LLC |
998,750 | |||
Total |
11,750,000 | |||
