EXHIBIT 1.1
LAZARD LTD
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
-------------
UNDERWRITING AGREEMENT
November 30, 2006
Goldman, Sachs & Co.,
As
representative of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Lazard Ltd,
a company incorporated under the laws of Bermuda (the
"Company"), proposes,
subject to the terms
and conditions stated
herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an
aggregate of
7,000,000 shares and, at the election of
the
Underwriters, up to
1,950,000 additional
shares of Class A
Common Stock, par
value $0.01 per share
("Stock"), of the
Company and the
shareholders
of the
Company named in
Schedule II hereto (the "Selling Shareholders") propose,
subject to the terms and conditions stated herein, to sell to the Underwriters
an aggregate of 6,000,000 shares of Stock. The aggregate of
13,000,000 shares to
be sold by the Company and the Selling Shareholders are herein called the
"Firm
Shares" and the
aggregate of 1,950,000 additional shares to be sold by the
Company are
herein called the "Optional Shares". The Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 3
hereof are herein collectively called the "Shares".
For the avoidance of doubt, it shall be understood and agreed by the
parties hereto that any and all references in this Agreement to
"subsidiaries"
of the Company shall be deemed to include Lazard Group LLC, a Delaware
limited
liability company, and each other significant subsidiary of the Company as
such
term is defined in Rule 1-02(w) of Regulation S-X as promulgated by the
Securities and Exchange Commission (the "Commission").
1.
The Company represents
and warrants
to, and agrees with,
each of the
Underwriters that:
(a) An "automatic shelf registration statement" as defined under
Rule
405
under the Securities
Act of 1933, as amended (the "Act"), on Form S-3
(File No. 333-138855)
in respect of the Shares has been filed with the
Securities and
Exchange Commission
(the "Commission") not earlier than
three years prior to the date hereof; such registration statement,
and any
post-effective amendment thereto, became
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effective on filing; and no stop order suspending the effectiveness
of such
registration statement
or any part thereof has been issued and no
proceeding for
that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use
of such
registration statement or any post-effective amendment thereto pursuant to
Rule
401(g)(2) under the Act has been
received by the
Company (the base
prospectus filed as
part of such
registration
statement, in the form
in
which it has most
recently been filed
with the Commission on
or prior to
the
date of this Agreement, is hereinafter called the "Basic
Prospectus";
any
preliminary
prospectus
(including
any preliminary prospectus
supplement) relating
to the Shares filed with the Commission pursuant to
Rule
424(b) under the Act is hereinafter called a "Preliminary
Prospectus";
the
various parts of such
registration
statement, including
all exhibits
thereto but excluding
Form T-1 and including
any prospectus supplement
relating to the
Shares that is filed with the
Commission
and deemed by
virtue of Rule
430B to be part of
such registration
statement,
each as
amended at the
time such part of the registration statement became
effective, are
hereinafter
collectively
called
the "Registration
Statement"; the Basic
Prospectus, as amended
and supplemented immediately
prior to the
Applicable Time (as
defined in
Section 1(c) hereof), is
hereinafter called
the "Pricing Prospectus"; the form of the final
prospectus relating to
the Shares filed with
the Commission
pursuant to
Rule
424(b) under the Act in accordance with Section 7(a) hereof is
hereinafter called the
"Prospectus";
any reference herein to the Basic
Prospectus, the
Pricing Prospectus,
any Preliminary Prospectus or the
Prospectus shall
be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the
Act,
as of the date of such
prospectus; any
reference to any amendment or
supplement to the
Basic Prospectus,
any Preliminary Prospectus or the
Prospectus shall be
deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating
to
the Shares filed with the Commission pursuant to Rule 424(b) under
the
Act
and any documents
filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated therein, in each case after
the
date of the Basic
Prospectus,
such Preliminary Prospectus, or the
Prospectus, as the
case may be; any
reference to any amendment to the
Registration Statement
shall be deemed to
refer to and include any annual
report of the Company
filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is
incorporated by reference in the Registration Statement; and any "issuer
free
writing prospectus"
as defined in Rule 433
under the Act relating to
the
Shares is hereinafter called an "Issuer Free Writing
Prospectus");
(b) No stop order
preventing or suspending the use of any Preliminary
Prospectus or any
Issuer Free Writing
Prospectus
has been issued by
the
Commission, and each Preliminary Prospectus, at the time of filing
thereof,
conformed in all material respects to the requirements of the Act and
the
rules and regulations of the Commission thereunder, and did not contain an
untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein,
in
the light of the circumstances under which they were made, not
misleading; PROVIDED,
HOWEVER, that this representation and warranty shall
not
apply to any
statements or
omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
Goldman,
Sachs & Co. or any other Underwriter by or through Goldman, Sachs & Co.
expressly for use therein or by a Selling Shareholder expressly for use in
the
preparation of answers therein to Item 7 of Form S-3 under the
Act;
(c) For the purposes of this Agreement, the "Applicable Time" is 4:40
pm
(Eastern time) on the date of this Agreement. The Pricing Prospectus as
supplemented
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<PAGE>
by
each Issuer Free Writing Prospectus listed on Schedule
III(a)(i) hereto
and
the pricing
information provided
orally by the Underwriters listed on
Schedule III(d) hereto (collectively, the "Pricing Disclosure Package")
as
of
the Applicable Time,
did not include any untrue statement of a material
fact
or omit to state any
material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were
made, not misleading;
and each Issuer Free
Writing Prospectus
listed on
Schedule III(a)(ii) hereto does not conflict with the information
contained
in
the Registration Statement, the Pricing Prospectus or the
Prospectus and
each
such Issuer Free
Writing Prospectus,
as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable
Time, did
not
include any untrue
statement of a
material fact or omit
to state any
material fact
necessary in order to make the statements therein, in the
light of the
circumstances under
which they were made,
not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not
apply to
statements or
omissions made in an Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to
the
Company by an Underwriter through Goldman, Sachs & Co. expressly for
use
therein;
(d) The documents
incorporated by reference in the Pricing Prospectus
and
the Prospectus,
when they became effective or were filed with the
Commission, as the
case may be, conformed in all material respects to the
requirements of the
Act or the Exchange Act, as applicable, and the rules
and
regulations of the
Commission thereunder,
and none of such
documents
contained an untrue
statement of a material fact or omitted to state a
material fact
required to be stated therein or necessary to make the
statements therein
not misleading; any further documents so filed and
incorporated by
reference in the
Prospectus or any
further amendment
or
supplement thereto,
when such documents become effective or are filed with
the
Commission, as the
case may be, will conform in all material respects
to
the requirements of the Act or the Exchange Act, as applicable,
and the
rules and regulations of the Commission thereunder and will not contain
an
untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading; PROVIDED,
HOWEVER, that this representation and
warranty
shall not apply to any statements or omissions made in reliance
upon and in
conformity with
information
furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein; and no
such
documents were filed with the Commission since the Commission's
close
of
business on the
business day
immediately prior to
each of the date of
this
Agreement and the execution of this Agreement, except as set forth on
Schedule III(c) hereto;
(e) The Registration
Statement conforms,
and the Prospectus and
any
further amendments or
supplements
to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the
Act and the rules and
regulations of the Commission thereunder and do
not
and will not, as of the applicable effective date as to each part of
the
Registration
Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement
thereto, contain an
untrue statement of a material fact or omit to state a
material fact
required to be stated therein or necessary to make the
statements
therein not
misleading;
PROVIDED,
HOWEVER,
that
this
representation and
warranty shall not apply to any statements or omissions
made
in reliance upon and
in conformity
with information furnished in
writing to the Company by Goldman, Sachs & Co. or any other
Underwriter by
or
through Goldman,
Sachs & Co.
expressly for use therein or by a Selling
Shareholder expressly
for use in the preparation of the answers therein to
Item
7 of Form S-3 under the Act;
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(f) Neither the
Company nor any of its
subsidiaries
has sustained
since the date of the
latest audited
financial statements included or
incorporated by
reference in the Pricing Prospectus any material loss or
interference with
its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or
court or governmental action, order or decree, otherwise than as set forth
or
contemplated in the Pricing Prospectus; and, since the respective
dates
as
of which information
is given in the
Registration
Statement and the
Pricing Prospectus,
and other than as set
forth in the Prospectus, there
has
not been (i) any change in the capital stock of the Company or any of
its
subsidiaries,
(ii) any change in the
amount of long-term
debt of the
Company or any of its
subsidiaries, or (iii)
any material adverse change,
or
any development
involving a prospective material adverse change, in or
affecting the
general
affairs,
management,
financial
position,
shareholders' or
members' equity or
results of operations
of the Company
and
its subsidiaries,
taken as a whole
(a "Material Adverse Effect"),
otherwise than as (1) set forth or contemplated in the Pricing
Prospectus,
including the pro forma financial and capitalization information contained
therein, (2) a result of the separation and recapitalization transactions
that
occurred at the time of the Company's initial public offering or
(3) a
result of any issuance of securities pursuant to the Company's 2005
Equity
Incentive Plan;
(g) The Company and its 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 Pricing
Prospectus or such as do not materially affect the value of such
property
and
do not materially
interfere with the use
made and proposed to be made
of
such property by the Company and its subsidiaries; and any real
property
and
buildings held under lease by the Company and its subsidiaries are
held
by
them under valid, subsisting and enforceable leases with such
exceptions
as
do not materially interfere with the use made and proposed to be
made of
such
property and buildings by the Company and its subsidiaries;
(h) (i) The Company
(a) has been duly incorporated and is existing as
a
corporation in good
standing under the laws of Bermuda (meaning solely
that
it has not failed to make any filing with any Bermuda governmental
authority, or to pay any Bermuda government fee or tax, which would
make it
liable to be struck off the Register of Companies and thereby cease to
exist under the laws of Bermuda), with corporate power and
authority to own
its
properties
and conduct its business as described in the Pricing
Prospectus, (b) has
been duly qualified as a foreign corporation for the
transaction of
business and is in good standing under the laws of each
other jurisdiction
in which it owns or
leases properties or
conducts any
business so as to require such qualification, except where the failure to
be
so qualified
or in good
standing as a foreign
corporation
would not
reasonably be expected to result in a Material Adverse Effect, and (c) is
not
subject to any material liability or disability by reason of the
failure to be so
qualified in any such jurisdiction; and (ii) each
subsidiary of the
Company has been duly
incorporated or
organized and is
validly existing in
good standing under
the laws of its
jurisdiction of
incorporation or formation, as applicable, except where the failure to be
so
qualified or in good standing would not reasonably be expected to
result
in a
Material Adverse Effect;
(i) The Company has an authorized capitalization as set forth in the
Pricing Prospectus,
and all of the issued
shares of capital
stock of the
Company have been duly and validly authorized and issued, are fully paid
and
non-assessable
and conform to the
description of the Shares contained
in
the Pricing Prospectus and the Prospectus; and all of the issued shares
of
capital stock or other equity interests of each subsidiary of
the
4
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Company have been duly and validly authorized and issued, are fully paid
and
non-assessable and (except for directors' qualifying shares and except
as
otherwise set forth in
the Pricing
Prospectus) are owned
directly or
indirectly by the
Company, free and
clear of all liens,
encumbrances or
claims, except (i)
such liens,
encumbrances or claims as described in the
Pricing Prospectus
or (ii) such liens, encumbrances or claims that,
individually or in the
aggregate, do not
materially
affect the value
of
such
shares of capital stock or otherwise would not reasonably be
expected
to
result in a Material Adverse Effect;
(j) The unissued
Shares to be issued
and sold by the
Company to the
Underwriters hereunder
have been duly and
validly authorized
and, when
issued and delivered
to the Underwriters against payment therefor as
provided herein,
will be duly and validly issued, fully paid and
non-assessable and free and clear of all liens, encumbrances, or
claims and
will
conform to the
description
of the Stock
contained in the Pricing
Prospectus;
(k) The Company
has been designated as a non-resident company of
Bermuda for the purposes of the Exchange Control Act 1972 and, as such,
is
free
to acquire, hold and
sell foreign currency
(including the payment of
dividends) without restriction;
(l) This Agreement has been duly authorized, executed and delivered
by
the
Company;
(m) The issuance
and sale of the
Shares to be sold by the Company
hereunder and the
compliance by the Company with all of the provisions of
this
Agreement and the consummation of the transactions herein
contemplated
will
not conflict with or result in a breach or violation of (i) any of
the
terms or provisions
of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to
which the Company
or any of its
subsidiaries
is a party or by which
the
Company or any of its subsidiaries is bound or to which any of the
property
or
assets of the Company or any of its subsidiaries is subject, (ii) the
provisions of the
Memorandum of
Association or Bye-laws of the Company or
(iii) any statute or any order, rule or regulation of, any court or
governmental
agency or body or any stock exchange authorities (a
"Governmental Agency")
having jurisdiction
over the Company or any of its
subsidiaries or any of their respective properties (hereinafter
referred to
as
"Governmental
Authorizations"),
except, in the case of clauses (i) and
(iii), for
such violations that would not, individually or in the
aggregate, materially
affect the value of
the Shares, the
ability of the
Company to consummate the transactions contemplated hereby or
reasonably be
expected to have a
Material Adverse
Effect; and no consent, approval,
authorization, order,
registration,
or qualification of or
with any such
Governmental Agency is
required for the issuance and sale of the Shares or
the
consummation by the
Company of the
transactions
contemplated by this
Agreement except
such as have been obtained under the Act and such
consents, approvals
authorizations,
registrations or qualifications as may
be
required under state
securities or Blue Sky laws in connection with the
purchase and
distribution
of the Shares by or for the account of the
Underwriters,
such consents,
approvals,
authorizations, orders,
registrations or
qualifications the
failure of which to obtain would not,
individually or in the
aggregate,
materially
affect the value of the
Shares, the
ability of the Company to consummate the transactions
contemplated hereby or
reasonably be expected
to have a Material
Adverse
Effect;
(n) Neither the Company nor any of its subsidiaries is in violation
of
any
of its constituent documents, or, except for such defaults which
would
not,
individually or in
5
<PAGE>
the
aggregate, reasonably be expected to have a Material Adverse
Effect, is
in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan
agreement,
lease or other
agreement or
instrument to which it
is a
party or by which it or any of its properties may be bound;
(o) There is no income or other tax of Bermuda (imposed by
withholding
or
otherwise) on any dividend or distribution to be made by the
Company to
the
holders of the Shares;
(p) Neither
the Company nor any of its subsidiaries has taken,
directly or
indirectly,
any action
which was designed to or which has
constituted or which
would reasonably be expected to cause or result
in
stabilization or
manipulation of the
price of any security of the Company
to
facilitate the sale or resale of the Shares;
(q) The statements
set forth in the Pricing Prospectus under the
caption "Description
of Capital Stock", insofar as they purport to
constitute a
summary of the terms of the Shares, under the caption
"Material U.S.
Federal Income Tax and Bermuda Tax
Considerations",
and
under the caption
"Underwriting",
insofar as they purport to describe the
provisions of the laws and documents referred to therein,
are accurate and
complete summaries of such provisions in all material respects;
(r) Other than as set forth in the Pricing Prospectus, there are no
legal or governmental
proceedings
pending to which the
Company or any of
its
subsidiaries is a
party or of which any property of the Company or any
of
its subsidiaries is
the subject which, if
determined adversely
to the
Company or any of its subsidiaries, would individually or in the
aggregate
have
a Material
Adverse Effect; and, to the best of the Company's
knowledge, no such
proceedings
are threatened or contemplated by any
Governmental Agency or threatened by others;
(s) Neither the
Company, nor any of
its subsidiaries
is or, after
giving effect
to the offering and sale of the Shares, will be an
"investment company", as such term is defined in the Investment
Company Act
of
1940, as amended (the "Investment Company Act");
(t) The Company
and each of its subsidiaries have all licenses,
franchises, permits,
authorizations,
approvals
and orders and other
concessions of and from all Governmental Agencies that are
necessary to own
or lease their other
properties and conduct
their businesses as
described
in
the Pricing Prospectus, except to the extent that the failure to
have or
obtain such licenses, franchises, permits, authorizations, approvals and
orders would not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect;
(u) Neither the
Company nor Lazard Group LLC is a Passive
Foreign
Investment Company
("PFIC") within the meaning of Section 1297 of the
United States Internal Revenue Code of 1986, as amended,
and is not likely
to
become a PFIC;
(v) To its knowledge,
neither the Company nor any of its subsidiaries
or
controlled affiliates
does business with the government of, or with any
person located in any
country in a manner
that violates in any
material
respect any of the economic sanctions programs or similar
sanctions-related
measures of the United States as administered by the United States
Treasury
Department's Office of
Foreign Assets
Control; and the net
proceeds from
this
offering and any concurrent offering will not be used to fund any
operations in,
finance any investments in or make any payments to any
country, or to make any payments to any
person, in a manner
that violates
in
any
6
<PAGE>
material respect any of the economic sanctions of the United
States
administered by the United States Treasury Department's Office of
Foreign
Assets Control;
(w) To its knowledge,
neither the Company nor any of its subsidiaries
or
controlled affiliates
does business with the government of Cuba or with
any
person located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(x) (A) (i) At the
time of filing the Registration Statement, (ii) at
the
time of the most recent amendment thereto for the purposes of
complying
with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant
to Section 13
or
15(d) of the Exchange Act or form of prospectus), and (iii) at the time
the
Company or any person
acting on its behalf
(within the meaning,
for
this
clause only, of Rule 163(c) under the Act) made any offer
relating to
the
Shares in reliance
on the exemption of Rule 163 under the Act,
the
Company was a "well-known seasoned issuer" as defined in Rule 405
under the
Act;
and (B) at the
earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Shares,
the
Company was not an "ineligible issuer" as defined in Rule 405 under
the
Act;
(y) Deloitte & Touche LLP, who have certified certain consolidated
financial statements
of the Company, are independent public accountants as
required by the
Act and the rules and regulations of the Commission
thereunder;
(z) The Company's
internal control over financial reporting (as such
term
is defined in Rule 13a-15(f) under the Exchange Act) are effective
and
the
Company is not aware of any material weaknesses in its internal
control
over
financial reporting;
(aa) The Company's internal control over financial reporting (as such
term
is defined in Rule 13a-15(f) under the Exchange Act) are sufficient
to
enable the Company's
principal executive
officer and principal
financial
officer to satisfy, in
a timely manner,
their respective certification
obligations under Section 302 of the Sarbanes-Oxley Act of 2002;
and
(bb) The Company maintains disclosure controls and procedures (as
such
term
is defined in Rule 13a-15(e) under the Exchange Act) that
comply with
the
requirements
of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information relating
to
the Company
and its subsidiaries is made known to the Company's
principal executive
officer and principal financial officer by others
within those entities;
and such disclosure controls and procedures are
effective.
2.
Each of the Selling
Shareholders severally
represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(a) All consents,
approvals,
authorizations and orders necessary for
the
execution and delivery by such Selling Shareholder of this Agreement
and
the Power of Attorney and the Custody Agreement hereinafter referred
to,
and for the sale and
delivery of the Shares to be sold by such Selling
Shareholder hereunder, will be obtained by the Time of Delivery (as
defined
in
Section 6 hereof); and
such Selling
Shareholder has full right, power
and
authority to enter into this Agreement, the Power-of-Attorney and the
Custody Agreement and to sell, assign, transfer and deliver the Shares
by
the
Time of Delivery to be sold by such Selling Shareholder
hereunder;
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<PAGE>
(b) The sale of the
Shares to be sold by such Selling Shareholder
hereunder and the
compliance by such Selling Shareholder with all of the
provisions of this
Agreement,
the Power of Attorney and the Custody
Agreement and the
consummation
of the transactions herein and therein
contemplated will not
conflict with or
result in a breach or violation of
any
of the terms or
provisions of, or
constitute
a default under, any
statute, indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Shareholder is a party or by
which such Selling
Shareholder is bound or to which any of the property or
assets of such Selling Shareholder is subject, nor will such action result
in
any violation of the provisions of the Certificate of Incorporation or
By-laws of such
Selling Shareholder if such Selling Shareholder is a
corporation, the
Partnership Agreement of such Selling Shareholder if such
Selling Shareholder is
a partnership or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction
over
such Selling Shareholder or the property of such Selling
Shareholder;
(c) Such Selling
Shareholder
immediately
prior to the each Time
of
Delivery will have
good and valid title
to the Shares to be
sold by such
Selling Shareholder hereunder, free and clear of all liens,
encumbrances or
claims; and,
upon delivery of such
Shares and payment
therefor pursuant
hereto, good and valid
title to such Shares,
free and clear of all liens,
encumbrances or claims, will pass to the several Underwriters;
(d) During the period beginning from the date hereof and continuing
to
and
including the date 180 days after the date of the Prospectus (the
initial "Lock-Up Period"), not to offer, sell contract to sell or
otherwise
dispose of, except as
provided hereunder,
any securities of the Company
that
are substantially similar to the Shares, including but not limited to
any
securities
that are convertible into or exchangeable for, or that
represent the right to
receive, Stock or any
such substantially
similar
securities (other than pursuant to employee stock option plans
existing on,
or
upon the conversion or exchange of convertible or exchangeable
securities outstanding
as of, the date of
this Agreement),
without your
prior written consent;
(e) Such Selling Shareholder has not taken and will not take,
directly
or
indirectly, any action
which is designed to or which has constituted or
which might reasonably
be expected to cause or result in stabilization or
manipulation of the
price of any security of the Company to facilitate the
sale
or resale of the Shares;
(f) To the extent
that any statements or omissions made in the
Registration
Statement, any
Preliminary Prospectus, the Prospectus, any
Issuer Free Writing
Prospectus or any amendment or supplement thereto are
made
in reliance upon and in conformity with written information
furnished
to
the Company by such Selling Shareholder expressly for use therein,
such
Preliminary
Prospectus and
the Registration Statement did, and the
Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus, when they become effective or are
filed with
the
Commission, as the
case may be, will conform in all material respects
to
the requirements
of the Act
and the rules and regulations of the
Commission thereunder
and will not
contain any untrue statement of a
material fact or omit
to state any material
fact required to be stated
therein or necessary to make the statements therein not
misleading;
8
<PAGE>
(g) In order
to document the Underwriters' compliance with the
reporting and
withholding
provisions
of the Tax Equity and Fiscal
Responsibility Act
of 1982 with respect to the transactions herein
contemplated, such
Selling Shareholder
will deliver to you prior to or at
the
First Time of Delivery (as hereinafter defined) a properly completed
and
executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in
lieu thereof);
(h) The Selling Shareholder has duly executed and delivered a Power
of
Attorney, in
the form heretofore furnished to you (the "Power of
Attorney"), appointing
the persons
indicated in Schedule
II hereto, and
each
of them, as such Selling Shareholder's attorneys-in-fact
(the
"Attorneys-in-Fact")
with authority to
execute and deliver this Agreement
and
the Custody
Agreement (as defined below) on behalf of such
Selling
Shareholder, to determine the purchase price to be paid by the
Underwriters
to
the Selling
Shareholders as provided in Section 3 hereof, to authorize
the
delivery of the Shares to be sold by such Selling Shareholder
hereunder
and
otherwise to act on
behalf of such Selling
Shareholder in
connection
with
the transactions contemplated by this Agreement and the Custody
Agreement, and such
Selling Shareholder
has duly executed and delivered
(either individually or through its Attorney-in-Fact acting
pursuant to the
Power of Attorney) a Custody Agreement, in the form heretofore
furnished to
you
(the "Custody
Agreement"), to The
Bank of New York, as custodian (the
"Custodian"); and
(i) The Shares
represented by the
certificates
held in custody
for
such
Selling Shareholder under the Custody Agreement will be, upon
issuance
at
the Time of Delivery,
subject to the interests of the Underwriters
hereunder; the
arrangements
made by such
Selling Shareholder for such
custody, and
the appointment by such Selling Shareholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent
irrevocable;
the
obligations
of the Selling Shareholders hereunder shall not be
terminated by
operation of law,
whether by the death or incapacity of any
individual Selling
Shareholder
or, in the case of an
estate or trust, by
the
death or incapacity of
any executor or trustee or the termination of
such
estate or trust, or in
the case of a partnership or corporation, by
the
dissolution of such partnership or corporation, or by the
occurrence of
any
other event; if any individual Selling Shareholder or any such
executor
or
trustee should die or
become incapacitated,
or if any such
estate or
trust should be
terminated,
or if any such
partnership
or corporation
should be dissolved,
or if any other such event should occur, before the
delivery of the Shares
hereunder,
certificates
representing
the Shares
shall be delivered by or on behalf of the Selling Shareholders in
accordance with the
terms and conditions of this Agreement and of the
Custody Agreements;
and actions taken by the Attorneys-in-Fact pursuant to
the
Powers of Attorney shall be as valid as if such
death, incapacity,
termination,
dissolution or other
event had not
occurred, regardless
of
whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall
have
received notice of such death, incapacity, termination, dissolution
or
other event.
3.
Subject to the terms and conditions herein set forth, (a) the
Company
and each of the Selling Shareholders agree, severally and not
jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees,
severally and
not jointly, to purchase from the Company and each of the Selling
Shareholders,
at a purchase price per Share of $43.71675 number of Firm Shares
(to be adjusted
by you so as to eliminate fractional shares) determined by
multiplying the
aggregate number of Shares to be sold by the Company and each of
the Selling
Shareholders as set forth opposite their respective names in
Schedule II hereto
by a fraction,
9
<PAGE>
the numerator of which is the aggregate number of Firm Shares to be
purchased by
such Underwriter as
set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased
by all of the
Underwriters
from the Company and the Selling
Shareholders hereunder
and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional
Shares as provided
below, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees,
severally and not jointly, to purchase from the Company at
the purchase
price per Share set
forth in clause (a) of
this Section 3,
that
portion of the number of Optional Shares as to which such
election shall have
been exercised
(to be adjusted by you
so as to eliminate
fractional
shares)
determined by
multiplying
such number of Optional Shares by a fraction the
numerator of
which is the maximum number of Optional Shares which such
Underwriter is
entitled to
purchase as set forth opposite the name of such
Underwriter in
Schedule I hereto and
the denominator
of which is the
maximum
number of Optional Shares that all of the Underwriters are entitled to
purchase
hereunder.
The
Company, as and to the extent indicated in Schedule II hereto,
hereby
grants to the
Underwriters
the right to purchase at their election up to
1,950,000 Optional
Shares, at the purchase price per Share set forth in
the
paragraph above,
for the sole purpose
of covering sales of shares in excess of
the number of Firm Shares, provided that the purchase
price per Optional
Share
shall be reduced by an amount per share equal to any dividends or
distributions
declared by the
Company and payable on the Firm Shares but
not payable on the
Optional Shares. Any
such election to purchase Optional Shares shall be made in
proportion to the maximum number of Optional Shares to be sold by
the Company as
set forth in Schedule II hereto. Any such election to purchase
Optional Shares
may be exercised only by written notice from you to the
Attorneys-in-Fact, given
within a period of 30 calendar days after the date of this
Agreement and setting
forth the aggregate
number of Optional
Shares to be purchased
and the date on
which such Optional
Shares are to be delivered, as determined by you but in no
event earlier
than the First Time of
Delivery (as defined in Section 6 hereof)
or, unless you and the
Attorneys-in-Fact
otherwise agree in
writing, earlier
than two or later than ten business days after the date of such
notice.
4.
Upon the authorization
by you of the release
of the Firm Shares,
the
several Underwriters
propose to offer the
Firm Shares for sale
upon the terms
and conditions set forth in the Prospectus.
5.
[Reserved]
6.
(a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and
in such authorized
denominations
and registered in
such
names as Goldman,
Sachs & Co. may request upon at least forty-eight
hours' notice to the Company and the Selling Shareholders prior to a Time
of
Delivery (as defined below) (the "Notification Time"), shall be
delivered by or on
behalf of the Company and the Selling Shareholders to
Goldman, Sachs &
Co., through
the facilities of The Depository Trust
Company ("DTC"), for the account of such Underwriter, against
payment by or
on
behalf of such
Underwriter
of the purchase price therefor by wire
transfer of
Federal (same-day) funds to the account specified by the
Company and the
Custodian to Goldman, Sachs & Co. at least
forty-eight
hours in advance.
Delivery of the Shares by the Company and the Selling
Shareholders will be
made to an account or accounts specified by Goldman,
Sachs & Co., in
such respective
portions as Goldman, Sachs & Co. may
designate, upon
written notice given to the Company and the Selling
Shareholders prior to the Notification Time. It is understood and
agreed by
the
parties hereto that no
delivery or transfer of Shares to be purchased
and
sold hereunder
at a Time of
Delivery shall be effective until and
unless payment therefor has been made pursuant hereto and each of
DTC, the
10
<PAGE>
Company and the Selling Shareholders shall have furnished or caused
to be
furnished to Goldman, Sachs & Co., on behalf of the
Underwriters at such
Time
of Delivery certificates and other evidence reasonably satisfactory
to
Goldman, Sachs & Co. of the execution in favor of the
Underwriters of the
book-entry transfer of Shares, to the custodian for DTC.
The time and date of such delivery and payment shall be,
with respect
to
the Firm Shares, 9:30
a.m., New York City
time, on December 6, 2006 or
such
other time and date as
Goldman, Sachs & Co., the Company and the
Selling Shareholders
may agree upon in
writing, and, with
respect to the
Optional Shares,
9:30 a.m.,
New York City time, on
the date specified by
Goldman, Sachs & Co. in the written notice given by Goldman,
Sachs & Co. of
the
Underwriters' election
to purchase such Optional Shares, or such other
time
and date as Goldman, Sachs & Co., the Company and the Selling
Shareholders may agree upon in writing. Such time and date for delivery
of
the
Firm Shares is herein
called the "First Time of Delivery", such time
and
date for delivery
of the Optional Shares, if not the First Time of
Delivery, is herein
called the "Second
Time of Delivery",
and each such
time
and date for delivery is herein called a "Time of Delivery".
(b) The documents
to be delivered at each Time of Delivery
by or on
behalf of the parties hereto pursuant to Section 10 hereof,
including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant
to Section 10(o)
hereof, will be delivered at the
offices of Cravath, Swaine & Moore LLP, Worldwide Plaza, 825
Eighth Avenue,
New
York, New York, 10019 (the "Closing Location"), and the Shares will be
delivered as specified in Section (a) above, all at such Time of Delivery.
A
meeting will be held at the Closing Location at 2:00 p.m., New York
City
time, on the New York Business Day next preceding such Time of
Delivery, at
which meeting the final drafts of the documents to be delivered
pursuant to
the
preceding sentence
will be available for review by the parties hereto.
For
the purposes of this Section 6, "New York Business Day" shall mean
each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which
banking institutions in New York City are generally authorized or
obligated
by
law or executive order to close.
7.
The Company
agrees with each of the Underwriters:
(a) To prepare the
Prospectus in a form approved by Goldman, Sachs &
Co.,
as representative
of the Underwriters, and to file such Prospectus
pursuant to Rule
424(b) under the Act not later than the Commission's close
of
business on the second business day following the execution and
delivery
of
this Agreement;
to make no further
amendment or any
supplement to the
Registration Statement, the Basic Prospectus or the Prospectus
prior to the
Time
of Delivery which
shall be disapproved
by Goldman,
Sachs & Co.,
as
representative of
the Underwriters, promptly after reasonable notice
thereof; to
advise Goldman, Sachs & Co., as representative of the
Underwriters, promptly
after it receives notice thereof, of the time when
any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has
been
filed and to furnish Goldman, Sachs & Co., as representative of the
Underwriters,
copies thereof;
to advise Goldman, Sachs & Co., as
representative of the
Underwriters,
to file promptly all
other material
required to be filed by the Company with the Commission pursuant to Rule
433(d) under the Act; to file promptly all reports and any
definitive proxy
or
information
statements
required to be filed
by the Company
with the
Commission pursuant to
Section 13(a), 13(c),
14 or 15(d) of the
Exchange
Act
subsequent
to the date of the Prospectus and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the
Act) is required in
connection with the
offering or
sale
of the Shares; to advise you,
11
<PAGE>
promptly after it receives notice thereof, of the issuance by
the
Commission of any stop order or of any order preventing or
suspending the
use
of any Preliminary Prospectus or other prospectus in respect of
the
Shares, of any notice of objection of the Commission to the use of
the
Registration Statement or any post-effective amendment thereto
pursuant to
Rule
401(g)(2) under the Act, of the suspension of the qualification of
the
Shares for offering or sale in any jurisdiction, of the initiation
or
threatening of any proceeding for any such purpose, or of any
request by
the
Commission for the amending or supplementing of the
Registration
Statement or Prospectus or for additional information; and, in the
event of
the
issuance of any stop order or of any order preventing or suspending
the
use
of any Preliminary Prospectus or other prospectus or suspending
any
such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order; and in the event of any such issuance of
a notice
of
objection, promptly to take such steps including, without
limitation,
amending the Registration Statement or filing a new registration
statement,
at
its own expense, as may be necessary to permit offers and sales of
the
Shares by the Underwriters (references herein to the Registration
Statement
shall include any such amendment or new registration
statement);
(b) If required by
Rule 430B(h)
under the Act, to
prepare a form of
prospectus in a form
approved by you and to
file such form of
prospectus
pursuant to Rule
424(b) under the Act not later than may
be required by
Rule
424(b) under the Act; and to make no further amendment or supplement
to
such form of prospectus which shall be disapproved by you promptly
after
reasonable notice thereof;
(c) Promptly from time to time to take such action as Goldman,
Sachs &
Co.,
as representative
of the Underwriters, may reasonably request to
qualify the Shares for offering and sale under the securities
laws of such
jurisdictions as
Goldman, Sachs & Co., as representative of the
Underwriters, may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long
as
may be necessary to complete the distribution of the Shares, provided
that
in connection
therewith the Company
shall not be required to qualify
as a
foreign corporation or to file a general consent to service of
process
in any jurisdiction or
subject itself to taxation for doing business in any
jurisdiction;
(d) Prior to 10:00 a.m., New York City time, on the New
York Business
Day
next succeeding
the date of this
Agreement and from
time to time, to
furnish the
Underwriters
with written and electronic copies of the
Prospectus in New
York City in such quantities as you may reasonably
request, and, if the
delivery of a
prospectus (or in lieu
thereof, the
notice referred to in
Rule 173(a)
under the Act) is
required at any time
prior to the
expiration
of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the
Shares and if at
such
time any events shall have occurred as a result of which the
Prospectus as
then amended or supplemented would include an untrue
statement of a material fact or omit to state any material
fact necessary
in
order to make the statements therein, in the light of the
circumstances
under which they were made when such Prospectus (or in lieu thereof, the
notice referred
to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for
any other reason it shall be necessary during such
same
period to amend or
supplement
the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with
the Act or the
Exchange Act, to
notify you and upon
your
request to file such document and prepare and furnish without charge
to
each Underwriter
and to any dealer in
securities
as many written
and
electronic copies as
you may from time to time reasonably request of an
amended Prospectus
or a supplement to the
Prospectus
which will correct
such
statement or omission or effect such compliance,
12
<PAGE>
and
in case any Underwriter is required to deliver a prospectus (or in
lieu
thereof, the notice referred to in Rule 173(a) under the Act) in
connection
with
sales of any of the
Shares at any time nine months or more after the
time
of issue of the
Prospectus, upon your
request but at the
expense of
such
Underwriter,
to prepare and deliver to such Underwriter as many
written and
electronic
copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(e)
To make generally available to the Company's shareholders as soon
as
practicable,
but in any event not
later than eighteen months after the
effective date of the
Registration
Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries
(which need not be audited) complying with Section 11(a) of the Act
and the
rules and regulations
of the Commission thereunder (including, at the
option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing
to
and
including the date 180 days after the date of the Prospectus (the
"Initial Lock-Up
Period"), not to offer, sell, contract to sell or
otherwise dispose of, except
as provided hereunder,
any securities of
the
Company or its subsidiaries that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or
that represent
the right to receive,
Shares or any
such
substantially similar securities, without your prior written
consent,
subject to the following exceptions:
(i) the issuance by the Company of securities pursuant to
employee stock
option plans or other employee or director plans
existing on, or upon
the conversion
or exchange of
convertible
or
exchangeable securities outstanding as of, the date of this
Agreement;
and
(ii) the issuance
by the Company of shares of its Stock in
connection with the
merger or joint venture with, or acquisition of,
another company,
or the acquisition of
