Exhibit 1.1
48,000,000 Shares
GENWORTH FINANCIAL,
INC.
CLASS A COMMON STOCK, PAR VALUE
$0.001 PER SHARE
UNDERWRITING
AGREEMENT
September 15, 2009
September 15, 2009
Goldman, Sachs &
Co.
85 Broad Street
New York, NY 10004
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
One Bryant Park,
New York, NY 10036
Deutsche Bank Securities
Inc.
60 Wall Street
New York, NY 10005
As Representatives of the several
Underwriters named in Schedule I hereto
Dear Sirs and Mesdames:
Genworth Financial, Inc., a Delaware
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
several underwriters named in Schedule I hereto (the “
Underwriters ”), for whom you are acting as
representatives (the “ Representatives ”), an
aggregate of 48,000,000 shares of its Class A Common Stock,
par value $0.001 per share (the “ Firm Shares
”). The Company also proposes to issue and sell to the
several Underwriters not more than an aggregate of 7,200,000 shares
of its Class A Common Stock, par value $0.001 per share (the
“ Additional Shares ”) if and to the extent that
you, as Representatives of the underwriters, shall have determined
to exercise, on behalf of the Underwriters, the right to purchase
such Additional Shares granted to the Underwriters in
Section 2 hereof. The Firm Shares and the Additional Shares
are collectively referred to as the “ Shares .”
The shares of Class A Common Stock, par value $0.001 per share
of the Company (including the Shares) are hereinafter referred to
as the “ Common Stock .”
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement, including a prospectus on Form
S-3 (File No. 333-161562), relating to securities, including
the Shares, to be issued from time to time by the Company. The
registration statement as amended to the date of this Agreement is
hereinafter referred to as the “ Registration
Statement , ” and the related prospectus covering
the Shares dated August 26, 2009 is hereinafter referred to as
the “ Base Prospectus .” For purposes of this
Agreement, “ Prospectus ” means the final
prospectus relating to the Shares, including any prospectus
supplement thereto relating to the Shares, as filed with
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the Commission pursuant to Rule 424(b) of the
Rules and Regulations under the Securities Act of 1933, as amended
(the “ Securities Act ”) and the term “
preliminary prospectus ” means the Base Prospectus, as
supplemented by the Preliminary Prospectus Supplement dated
September 14, 2009.
For purposes of this Agreement,
“ free writing prospectus ” has the meaning set
forth in Rule 405 under the Securities Act and “ Time of
Sale Prospectus ” means the Base Prospectus and the
preliminary prospectus, together with the free writing
prospectuses, if any, each identified on Schedule II hereto (which
shall not include any Electronic Road Show as defined in
Section 1(b) hereof) and the pricing information set forth in
Schedule III hereto. As used herein, the terms “Registration
Statement,” “preliminary prospectus,” “Time
of Sale Prospectus” and Prospectus shall include the
documents, if any, incorporated by reference therein. The terms
“ supplement ,” “ amendment ”
and “ amend ” as used herein with respect to the
Registration Statement, the Base Prospectus, the Time of Sale
Prospectus, the preliminary prospectus or any free writing
prospectus shall include all documents subsequently filed by the
Company with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”), that
are incorporated by reference therein.
1. Representations and Warranties
of the Company . The Company represents and warrants to and
agrees with each of the Underwriters, as of the date hereof,
that:
(a) The Registration Statement has
become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the Company’s knowledge,
threatened by the Commission. The Company is eligible to use the
Registration Statement as an “automatic shelf registration
statement” (as defined in Rule 405 under the Securities Act),
and the Company has not received notice from the Commission
objecting to the use of the Registration Statement as an automatic
shelf registration statement.
(b) (i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus complied or will comply when so filed
in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective, did not contain,
and, as amended or supplemented, if applicable, will not contain
any 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, (iii) the Registration
Statement, the preliminary prospectus and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the
applicable
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rules and regulations of the
Commission thereunder, (iv) the Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with
the offering at or prior to the Closing Date (as defined in
Section 4), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
(v) any “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission (each such
road show, an “ Electronic Road Show ”), when
considered together with the Time of Sale Prospectus, does not, and
at the time of each sale of the Shares in connection with the
offering at or prior to the Closing Date (as defined in
Section 4), any such Electronic Road Show, when considered
together with the Time of Sale Prospectus, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and
(vi) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not
apply to statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The Company is a well known
seasoned issuer (as defined in Rule 405 under the Securities Act)
and is not an “ineligible issuer” in connection with
the offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule II hereto, and
Electronic Road Shows, if any, furnished to you before first use,
the Company has not prepared, used or referred to, and will not,
without your prior consent, prepare, use or refer to, any free
writing prospectus.
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(d) The Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the State of Delaware, has the corporate power
and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and to enter into and
perform its obligations under this Agreement, and is duly qualified
to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not, singly
or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company
set forth on Schedule IV hereto (each, a “ Designated
Subsidiary ” and, collectively, the “ Designated
Subsidiaries ”) has been duly incorporated or formed, is
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, has the full power
and authority to own its property and to conduct its business as
currently conducted and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each Designated Subsidiary owned directly or indirectly by
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities
or claims, except as described in the Prospectus; for purposes of
this Agreement, Schedule IV hereto includes each subsidiary of the
Company that is a “significant subsidiary” (as such
term is defined in Rule 1-02 of Regulation S-X promulgated by the
Commission).
(f) This Agreement has been duly
authorized, executed and delivered by the Company.
(g) The authorized Common Stock of
the Company conforms as to legal matters to the description thereof
contained in each of the Time of Sale Prospectus and the
Prospectus.
(h) The shares of Common Stock
outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and
non-assessable.
(i) The Shares have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
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(j) (A) The execution and delivery
by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene (i) any
provision of applicable law or the certificate of incorporation or
by-laws of the Company, (ii) any agreement or other instrument
binding upon the Company or any of its subsidiaries (except to the
extent such contravention would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole) or (iii) any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and (B) no consent, approval,
authorization or order of, or qualification with, any U.S. federal,
state or local governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
except such as has been obtained and as may be required to be
obtained by the Company under the securities or Blue Sky laws of
the various states in connection with the offer and sale of the
Shares.
(k) Neither the Company nor any of
its Designated Subsidiaries is in violation of its certificate of
incorporation, by-laws or other constituent documents; neither the
Company nor any of its subsidiaries is in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any agreement or other
instrument binding upon the Company or any of its subsidiaries,
except to the extent such default would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(l) There has not occurred any
material adverse change in the financial condition, or in the
earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of
Sale Prospectus.
(m) There are no legal or
governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described therein and there are no statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as
required. The Time of Sale Prospectus contains in all material
respects the same description of the foregoing matters contained in
the Prospectus.
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(n) The preliminary prospectus filed
as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder.
(o) The Company is not, and after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus
will not be, required to register as an “investment
company” as such term is defined in the Investment Company
Act of 1940, as amended.
(p) Except as described in the Time
of Sale Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration
Statement.
(q) Subsequent to the date as of
which information is given in the Time of Sale Prospectus,
(i) the Company and its subsidiaries have not incurred any
material liability or obligation, direct or contingent, or entered
into any material transaction not in the ordinary course of
business; (ii) the Company has not purchased any of its
outstanding capital stock (other than any such purchases
(A) pursuant to the Company’s publicly-announced stock
repurchase program and/or (B) to cover withholding tax
obligations of the Company’s employees in connection with
their exercise of outstanding equity awards under the
Company’s existing employee incentive plans), or declared,
paid or otherwise made any dividend or distribution of any kind on
its capital stock other than ordinary and customary dividends; and
(iii) there has not been any material change in the capital
stock, short-term debt or long-term debt of the Company and its
subsidiaries, except in each case as otherwise described or
otherwise contemplated in the Time of Sale Prospectus.
(r) The Company and its Designated
Subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Time
of Sale Prospectus or would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole; and any real property and buildings held under lease by
the Company and its Designated Subsidiaries are held by them under
valid, subsisting and enforceable leases except such as
are
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described in the Time of Sale
Prospectus or would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(s) The Company and its Designated
Subsidiaries own or possess, or can acquire on reasonable terms,
all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now
operated by them, except where the failure to so own, possess or be
able to acquire on reasonable terms would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and neither the Company nor any of
its Designated Subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any
of the foregoing which, singly or in the aggregate, would have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(t) No labor dispute with the
employees of the Company or any of its subsidiaries exists, except
as described in the Time of Sale Prospectus, or, to the knowledge
of the Company, is imminent, except where such dispute would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(u) Each Designated Subsidiary of
the Company that is engaged in the business of insurance or
reinsurance (each an “ Insurance Subsidiary ,”
collectively the “ Insurance Subsidiaries ”) is
licensed or authorized to conduct an insurance or reinsurance
business, as the case may be, under the insurance statutes of each
jurisdiction in which the conduct of its business requires such
licensing or authorization, except for such jurisdictions in which
the failure of the Insurance Subsidiary to be so licensed or
authorized would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole. The Insurance Subsidiaries have made all required filings
under applicable insurance statutes in each jurisdiction where such
filings are required, except for such filings the failure of which
to make would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole. Each of the Insurance Subsidiaries has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations and qualifications (“ Authorizations
”), of and from all insurance regulatory authorities
necessary to conduct their respective existing businesses as
described in the Time of Sale Prospectus, except where the failure
to have such Authorizations would not, singly or in the
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aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and
no Insurance Subsidiary has received any notification from any
insurance regulatory authority to the effect that any additional
Authorizations are needed to be obtained by any Insurance
Subsidiary in any case where it could reasonably be expected that
the failure to obtain such additional Authorizations or the
limiting of the writing of such business would have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, and no insurance regulatory authority having jurisdiction
over any Insurance Subsidiary has issued any order or decree
impairing, restricting or prohibiting (i) the payment of
dividends by any Insurance Subsidiary to its parent, other than
those restrictions applicable to insurance or reinsurance companies
under such jurisdiction generally or (ii) the continuation of
the business of the Company or any of the Insurance Subsidiaries in
all material respects as presently conducted, in each case except
where such orders or decrees would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(v) Except as described in the Time
of Sale Prospectus, (i) all ceded reinsurance and
retrocessional treaties, contracts, agreements and arrangements
(“ Reinsurance Contracts ”) to which the Company
or any Insurance Subsidiary is a party and as to which any of them
reported recoverables, premiums due or other amounts in its most
recent statutory financial statements are in full force and effect,
except where the failure of such Reinsurance Contracts to be in
full force and effect would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken
as a whole, and (ii) neither the Company nor any Insurance
Subsidiary has received any notice from any other party to any
Reinsurance Contract that such other party intends not to perform
such Reinsurance Contract in any material respect, and the Company
has no knowledge that any of the other parties to such Reinsurance
Contracts will be unable to perform its obligations thereunder in
any material respect, except where (A) the Company or the
Insurance Subsidiary has established reserves in its financial
statements which it deems adequate for potential uncollectible
reinsurance or (B) such nonperformance would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(w) Except as described in the Time
of Sale Prospectus or as otherwise agreed to by the parties hereto,
the Company has no knowledge of any threatened or pending
downgrading of the Company’s or any of its
subsidiaries’ claims-paying ability rating or financial
strength rating by A.M. Best Company, Inc., Standard &
Poor’s Financial Services LLC, Moody’s Investor
Service, Inc., Fitch Ratings, Ltd. or any other
“nationally
9
recognized statistical rating
organizations,” as such term is defined for purposes of Rule
436(g)(2) under the Securities Act, which currently has publicly
released a rating of the claims-paying ability or financial
strength of the Company or any subsidiary.
(x) The Company and each of its
Designated Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United
States generally accepted accounting principles (“
GAAP ”) and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(y) The Shares have been authorized
for listing on the New York Stock Exchange (the “ NYSE
”), subject only to official notice of issuance, and have
been registered under the Exchange Act.
(z) Except as described in the
Registration Statement or the Time of Sale Prospectus, the Company
has not sold, issued or distributed any shares of Common Stock
during the six-month period preceding the date hereof, including
any sales pursuant to Rule 144A under, or Regulation D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(aa) The statements set forth in
(i) the Time of Sale Prospectus under the captions
“Description of Class A Common Stock,” insofar as
they purport to constitute a summary of the terms of the Common
Stock, and “U.S. Federal Income Tax Consequences,”
(ii) the Company’s Annual Report on Form 10-K for the
year ended December 31, 2008 under the caption “Item 1.
Business – Regulation,” (iii) the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2009 “Part II.—Other
Information—Item 1. Legal Proceedings,” as supplemented
by the information disclosed in the Current Report on Form 8-K
filed by the Company on September 14, 2009, (iv) the
Company’s Proxy Statement for the Company’s 2009 annual
meeting of stockholders under the caption “Certain
Relationships and Transactions” and (v) the Registration
Statement under the caption “Item 15 – Indemnification
of Directors and Officers,” insofar as they purport to
describe the provisions of the laws and documents referred to
therein, fairly summarize in all material respects the matters
described therein.
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(bb) Neither the Company nor any of
its affiliates has taken or will take, directly or indirectly, any
action which is designed to or which has constituted or which might
have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company in
connection with the offering of the Shares.
(cc) KPMG LLP, whose report is
incorporated by reference in the Prospectus, is an independent
registered public accounting firm with respect to the Company and
its consolidated subsidiaries within the meaning of the Securities
Act and the rules and regulations adopted by the Commission
thereunder. The financial statements of the Company and its
consolidated subsidiaries (including the related notes and
supporting schedules) included in the Registration Statement, the
Time of Sale Prospectus and the Prospectus present fairly in all
material respects the financial condition, results of operations
and cash flows of the entities purported to be shown thereby at the
dates and for the periods indicated and have been prepared in
accordance with GAAP applied on a consistent basis throughout the
periods indicated and conform in all material respects with the
rules and regulations adopted by the Commission under the
Securities Act; and the supporting schedules included in the
Registration Statement present fairly in all materials respects the
information required to be stated therein.
2. Agreements to Sell and
Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and
not jointly, from the Company the respective number of Shares set
forth in Schedule I hereto opposite its name at $11.2729 a share
(the “ Purchase Price ”).
On the basis of the representations
and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to sell to the
Underwriters, and the Underwriters shall have the right to
purchase, severally and not jointly, up to the number of Additional
Shares set forth in the first paragraph of this Agreement at the
Purchase Price. You may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving
written notice not later than 30 days after the date of the
Prospectus. Any exercise notice shall specify the number of
Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Each purchase date must
be at least one business day after the written notice is given and
may not be earlier than the closing date for the Firm Shares nor
later than ten
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business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4
hereof. On each day, if any, that Additional Shares are to be
purchased (an “ Option Closing Date ”), each
Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be
purchased on such Option Closing Date as the number of Firm Shares
set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby covenants with
each Underwriter that it will not during the period ending 90 days
after the date of the Prospectus, without the prior written consent
of Goldman, Sachs & Co. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, on behalf of the Underwriters
(i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock; (ii) file or cause to be filed
any registration statement with the Commission relating to the
offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock;
or (iii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such
transaction described in clause (i), (ii) or (iii) above
is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise.
The restrictions contained in the
preceding paragraph shall not apply to (A) the grant by the
Company of stock options, restricted stock or other awards pursuant
to the Company’s benefit plans as described in the
Prospectus; provided that such options, restricted stock or
awards do not become exercisable or vest during such 90-day period,
(B) the issuance by the Company of shares of Common Stock upon
the exercise of an option or warrant, the lapse of restrictions on
restricted stock units, the settlement of stock appreciation rights
or the conversion of a security outstanding on or prior to the date
hereof and which is described in the Prospectus of which the
Underwriters have been advised in writing, (C) issuances by
the Company of shares of Common Stock in connection with the
acquisition of another corporation or entity or the acquisition of
the assets or properties of any such corporation or entity, so long
as (i) the aggregate amount of such issuances does not exceed
$500 million and (ii) each of the recipients of the Common
Stock agrees in writing prior to the consummation of any such
transaction to be bound by the provisions of the preceding
paragraph for the remainder of such 90-day period and (D) the
filing of a registration statement on Form S-8 relating to the
issuance of stock options, restricted stock and other awards
pursuant to the Company’s employee benefit plans as described
in the Prospectus.
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3. Terms of Public Offering .
The Company is advised by you that the Underwriters propose to make
a public offering of their respective portions of the Shares as
soon after this Agreement has become effective as in your judgment
is advisable. The Company is further advised by you that the Shares
are to be offered to the public initially at $11.75 a share (the
“ Public Offering Price ”) and to certain
dealers selected by you at a price that represents a concession not
in excess of $0.2863 a share under the Public Offering
Price.
4. Payment and Delivery.
Payment for the Shares shall be made to the Company in Federal or
other funds immediately available in New York City against delivery
of such Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on
September 21, 2009, or at such other time on the same or such
other date, not later than September 28, 2009, as shall be
agreed in writing by the parties. The time and date of such payment
are hereinafter referred to as the “ Closing Date
.”
Payment for any Additional Shares
shall be made to the Company in Federal or other funds immediately
available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 2 or at such other
time on the same or on such other date, in any event not later than
seven business days after the date of the notice described in
Section 2, as shall be designated in writing by
you.
The Shares shall be registered in
such names and in such denominations as you shall request in
writing not later than one full business day prior to the Closing
Date. The Shares shall be delivered to you on the Closing Date for
the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the
Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
5. Conditions to the
Underwriters’ Obligations . The several obligations of
the Underwriters are subject to the following
conditions:
(a) Subsequent to the execution and
delivery of this Agreement and prior to the Closing
Date:
(i) except as otherwise agreed to
the parties hereto, there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change, in the rating
accorded any of the Company’s securities or the
Company’s financial strength or claims-paying ability by any
“nationally recognized statistical rating
organization,” as such term is defined for purposes of
Rule
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436(g)(2) under the Securities Act;
provided, however , that an ordinary course review that does
not indicate a downward direction of the possible change shall not
constitute a review for a possible change; and
(ii) there shall not have occurred
any material adverse change in the financial condition or in the
earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of
Sale Prospectus.
(b) The Underwriters shall have
received on the Closing Date a certificate, dated the Closing Date
and signed by an executive officer of the Company, to the effect
set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering
such certificate may rely upon the best of his or her knowledge as
to proceedings threatened.
(c) The Underwriters shall have
received on the Closing Date an opinion and letter of Weil,
Gotshal & Manges LLP, outside U.S. counsel for the
Company, dated the Closing Date, as set forth in Exhibits B-1 and
B-2.
(d) The Underwriters shall have
received on the Closing Date an opinion of Dewey & LeBoeuf
LLP, special U.S. regulatory counsel for the Company, dated the
Closing Date, as set forth in Exhibit C.
(e) The Underwriters shall have
received on the Closing Date an opinion of Leon E. Roday, Esq., the
Company’s General Counsel, dated the Closing Date, as set
forth in Exhibit D.
(f) The Underwriters shall have
received on the Closing Date an opinion of Davis Polk &
Wardwell, counsel for the Underwriters, dated the Closing Date,
with respect to such matters as the Underwriters shall
request.
The opinions of Weil,
Gotshal & Manges LLP, Dewey & LeBoeuf LLP and
Leon E. Roday, Esq. described in Sections 5(c)- 5(e) above shall be
rendered to the Underwriters at the request of the Company and
shall so state therein.
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(g) The Underwriters shall have
received, on each of the date hereof and the Closing Date, a letter
dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to the Underwriters, from KPMG LLP,
independent public accountants, containing statements and
information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided that the letter delivered on the
Closing Date shall use a “cut-off date” not earlier
than the date hereof.
(h) The “lock-up”
agreements, each substantially in the form of Exhibit A hereto,
between you and each executive officer and director of the Company
relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the
Closing Date.
(i) The Underwriters shall have
received, on each of the date hereof and the Closing Date, a
certificate of Amy R. Corbin, the Company’s Vice President
and Controller, dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to the
Underwriters.
6. Covenants of the Company .
The Company covenants with each Underwriter as follows:
(a) To furnish to you, without
charge, three signed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day
next succeeding the date of this Agreement or as promptly as
practicable thereafter and during the period mentioned in
Section 6(e) or 6(f) below, as many copies of the Time of Sale
Prospectus, the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(b) Before amending or supplementing
the Registration Statement, the Time of Sale Prospectus or the
Prospectus prior to the completion of the distribution of the
Shares by the Underwriters, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
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(c) To furnish to you a copy of each
proposed free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which you reasonably
object.
(d) Not to take any action that
woul
