Exhibit 10.1
National Financial Partners
Corp.
Common Stock, par value $0.10 per
share
Underwriting
Agreement
January 17, 2007
Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
Banc of America Securities
LLC
9 West 57th Street
New York, New York 10019
As representatives of the several
underwriters
named in Schedule I hereto (the
“Underwriters”),
Ladies and Gentlemen:
The stockholders of National
Financial Partners Corp., a Delaware corporation (the
“Company”), named in Schedule II hereto (the
“Selling Stockholders”), propose, subject to the terms
and conditions stated herein, to sell to the Underwriters an
aggregate of 1,608,849 shares (the “Firm Shares”) and,
at the election of the Underwriters, up to 241,256 additional
shares (the “Optional Shares”) of Common Stock, par
value $0.10 per share, of the Company (the “Stock”).
The Firm Shares and the Optional Shares that the Underwriters elect
to purchase pursuant to Section 2 hereof are herein
collectively called the “Shares”).
It is understood and agreed that
Goldman, Sachs & Co. and Banc of America Securities LLC
(the “Representatives”) are joint book-running managers
for the offering of the Shares contemplated hereby and any
determinations or other actions to be made under this Agreement by
the Representatives shall require the concurrence of each of the
Representatives.
1. (a) The Company represents and
warrants to, and agrees with, the Underwriters that:
(i) An automatic shelf registration
statement on Form S-3 (File No. 333-134915), including the
preliminary prospectus or prospectuses relating to the registration
of certain securities described therein, including the Shares (such
registration statement, including the amendments thereto that
relate to the Shares, the exhibits and any schedules thereto, if
any, and the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act of 1933, as
amended (the “Act”), at the time it became effective
and including the Rule 430B Information (as defined below) is
herein called the “Registration Statement”; no stop
order suspending the effectiveness of the Registration
Statement or any post-effective
amendment thereto has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (the
Base Prospectus (as defined herein) as amended and supplemented by
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”);
(ii) The Company will file with the
Commission pursuant to Rule 430B (“Rule 430B”) and
paragraph (b) of Rule 424 (“Rule 424(b)”) under
the Act a supplement or supplements to the form of prospectus
included in the Registration Statement relating to the Shares and
the plan of distribution for the Shares (the information included
in such prospectus that was omitted from such registration
statement at the time it became effective but that is deemed to be
part of and included in such Registration Statement pursuant to
Rule 430B is referred to as “Rule 430B Information”;
the prospectus in the form in which it currently appears in the
Registration Statement is hereinafter called the “Base
Prospectus,” and such supplemented form of prospectus
relating to the Shares, in the form in which it shall first be
filed with the Commission pursuant to Rule 424(b) under the Act
(including the Base Prospectus as so supplemented), is hereinafter
called the “Prospectus”; “free writing
prospectus” means a free writing prospectus, if any, as
defined under Rule 405 under the Act that constitutes an offer to
sell or a solicitation of an offer to buy the Shares; “Issuer
Free Writing Prospectus” means any issuer free writing
prospectus, as defined in Rule 433 under the Act; the
“Applicable Time of Sale” is 7:00 a.m. New York time on
the next business day following the date of this Agreement; and
“Time of Sale Prospectus” means (i) the
Preliminary Prospectus, as amended or supplemented immediately
prior to the Applicable Time of Sale and (ii) the Issuer Free
Writing Prospectuses, if any, each identified in Schedule IV(a)
hereto, all considered together; and any reference herein to the
Registration Statement, the Base Prospectus, the Preliminary
Prospectus, the Time of Sale Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) or otherwise deemed under the Act to be
a part of or included therein; and any reference herein to the
terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Preliminary Prospectus, the Prospectus, the Base
Prospectus, the Time of Sale Prospectus or any Issuer Free Writing
Prospectus shall be deemed to refer to and include any document
filed under the Exchange Act after the date of this Agreement, or
the issue date of the Base Prospectus or the Prospectus, as the
case may be, deemed to be incorporated therein by reference or
otherwise deemed under the Act to be a part of or included
therein);
(iii) No order preventing or
suspending the use of any Preliminary Prospectus and the Time of
Sale Prospectus, the Prospectus or any Issuer Free Writing
Prospectus has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission;
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(iv) The Registration Statement and
any Preliminary Prospectus conform, and the Prospectus and any
further amendments or supplements to the Registration Statement and
the Prospectus will conform, in all material respects to the
applicable requirements of the Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided , however
, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein
or by a Selling Stockholder expressly for use therein;
(v) The Time of Sale Prospectus did
not, at the Applicable Time of Sale, 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 the
Representatives expressly for use therein or by a Selling
Stockholder expressly for use therein;
(vi) Each Issuer Free Writing
Prospectus listed on Schedule IV(b) hereto does not conflict with
the information contained in the Registration Statement, the Time
of Sale Prospectus or the Prospectus. Each such Issuer Free Writing
Prospectus, when considered together with the Time of Sale
Prospectus as of the Applicable Time of Sale, did not include any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
foregoing sentence does not apply to statements in or omissions
from the Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by an
Underwriter through the Representatives specifically for use
therein or by a Selling Stockholder expressly for use
therein;
(vii)(A) (i) At the time of
filing the Registration Statement and (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), 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;
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(viii) Neither the Company nor any
of its subsidiaries has sustained since the date of the latest
audited financial statements included in the Registration
Statement, Time of Sale Prospectus and the 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 Registration
Statement, Time of Sale Prospectus and the Prospectus; and, since
the respective dates as of which information is given in the Time
of Sale Prospectus and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any
of its subsidiaries (except for the vesting or exercise of
restricted stock units or options pursuant to equity incentive,
compensation or benefit plans in existence on the date of this
Agreement and described in the Time of Sale Prospectus, the
repurchase of shares of common stock from Apollo Investment Fund
IV, L.P. and Apollo Overseas Partners IV, L.P. (collectively,
“Apollo”) by the Company as described in the Time of
Sale Prospectus, and the Company’s offering of convertible
senior notes and use of proceeds from such offering to pay a
portion of its indebtedness outstanding under its credit facility
as described in the time of Sale Prospectus) or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
consolidated financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the Time of
Sale Prospectus and the Prospectus;
(ix) The Company and the
subsidiaries of the Company set forth on Schedule III hereto (each
a “Subsidiary” and, collectively, the
“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 such as would not have a material
adverse effect on the current or future general affairs,
management, consolidated financial position, stockholders’
equity or results of operations of the Company and its
subsidiaries, taken as a whole (a “Material Adverse
Effect”); 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
are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company
and its Subsidiaries;
(x) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Time of Sale Prospectus and the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing (to the
extent such concept exists) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each
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Subsidiary has been duly
incorporated or organized, as the case may be, and is validly
existing as a corporation, partnership or limited liability
company, as the case may be, in good standing (to the extent such
concept exists) under the laws of its jurisdiction of incorporation
or organization, as the case may be;
(xi) The Company has an authorized
capitalization as set forth in the Time of Sale Prospectus and the
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 Stock
contained in the Time of Sale Prospectus and the Prospectus; and
all of the issued shares of capital stock of each Subsidiary of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors’ qualifying
shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims (except for
those related to the Credit Agreement, dated as of August 22,
2006, as amended as of January 16, 2007, among the Company, as
Borrower, the several lenders from time to time parties thereto,
and Bank of America, N.A., as Administrative Agent);
(xii) The unissued Shares to be
issued by the Company to certain of the Selling Stockholders upon
the exercise of their respective stock options and sold by the
Selling Stockholders to the Underwriters hereunder prior to the
applicable Time of Delivery pursuant to the terms of each such
Selling Stockholder’s applicable Option Exercise Notice (as
defined in Section 1(b)(viii) hereof), hereinafter referred to
as the “Stockholder Option Shares,” have been duly and
validly authorized and, when issued and delivered against payment
therefor, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Stock
contained in the Time of Sale Prospectus and the
Prospectus;
(xiii) The compliance by the Company
with all of the provisions of this Agreement and the consummation
of the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, (i) 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
Certificate of Incorporation or By-laws of the Company or
(iii) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties
except, in the case of clauses (i) and (iii), for such
breaches, violations or defaults that would not result in a
Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the
Act of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities (including insurance securities) or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters;
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(xiv) Neither the Company nor any of
its Subsidiaries is in violation of its Certificate of
Incorporation or By-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be
bound;
(xv) The statements set forth in the
Time of Sale Prospectus and the Prospectus under the caption
“Description of Common Stock,” insofar as they purport
to constitute a summary of the terms of the Stock, and under the
caption “Important United States Federal Tax Considerations
For Non-United States Holders,” and under the caption
“Underwriting,” insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(xvi) Other than as set forth in the
Time of Sale Prospectus and the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company or
any of its Subsidiaries is the subject which could be reasonably
expected, individually or in the aggregate, to have a Material
Adverse Effect; and, to the knowledge of the Company, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xvii) The Company and its
Subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure to possess
such Governmental Licenses would not have a Material Adverse
Effect; the Company and its Subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, individually or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have
a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental
Licenses;
(xviii) The Company and its
Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are customary in the businesses in which they are engaged, except
where the failure to be so insured would not have a Material
Adverse Effect, and neither the Company nor any of its Subsidiaries
has any reason to believe that any of them will not be able to
(i) renew its existing insurance coverage as and
when
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such coverage expires except where
the failure to renew would not have a Material Adverse Effect, or
(ii) to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a Material Adverse Effect;
(xix) The Company and its
Subsidiaries own, possess, have other rights to use or can acquire
on reasonable terms, adequate 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,
trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the
business now operated by them, except where the failure to own,
possess or have other rights to use, or be able to acquire, such
Intellectual Property would not have a Material Adverse Effect;
neither the Company nor any of its Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its Subsidiaries therein, which
infringement, conflict, invalidity or inadequacy, individually or
in the aggregate, would be reasonably likely to have a Material
Adverse Effect;
(xx) The Company is not and, after
giving effect to the offering and sale of the Shares, will not be
an “investment company,” as such term is defined in the
Investment Company Act of 1940, as amended;
(xxi) Neither the Company nor any of
its affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes;
(xxii) The Company and each of its
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 authorization;
(ii) transactions are recorded as necessary to permit
preparation of consolidated financial statements in conformity with
United States generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences;
(xxiii) The Company has established
and maintains disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e) under the Exchange Act; such
disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by
others within those entities and are effective to perform the
functions for which they were established;
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(xxiv) There has been no change in
the Company’s internal control over financial reporting since
September 30, 2006 that has materially affected, or is
reasonably likely to materially affect, the Company’s
internal control over financial reporting; and, since
December 31, 2005, the audit committee of the board of
directors of the Company has been advised by the Company of:
(i) all significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report
financial information and (ii) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company’s internal control over
financial reporting;
(xxv) The consolidated financial
statements, together with related schedules and notes, included in
the Registration Statement, Time of Sale Prospectus and the
Prospectus (and any amendment or supplement thereto) present fairly
in all material respects the financial position, results of
operations and changes in financial position of the Company and its
consolidated subsidiaries at the respective dates or for the
respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with United
States generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and
data of the Company set forth in the Registration Statement, Time
of Sale Prospectus and the Prospectus (and any amendment or
supplement thereto) present fairly, in all material respects, the
information stated therein and have been derived from the books and
records of the Company, and such other financial information and
data have been prepared on a basis consistent with such financial
statements;
(xxvi) PricewaterhouseCoopers LLP
(“PWC”), which has certified certain financial
statements of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company
within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Commission and the Public
Company Accounting Oversight Board (United States);
(xxvii) Each subsidiary of the
Company which is engaged in the business of acting as a
broker-dealer or an investment advisor (respectively, a
“Broker-Dealer Subsidiary” and an “Investment
Advisor Subsidiary”) is duly licensed or registered as a
broker-dealer or investment advisor, as the case may be, in each
jurisdiction where it is required to be so licensed or registered
to conduct its business, except where the failure to be so licensed
or registered would not have a Material Adverse Effect; each
Broker-Dealer Subsidiary and each Investment Advisor Subsidiary has
all other necessary approvals of and from all applicable regulatory
authorities, including any self-regulatory organization, to conduct
its businesses, except where the failure to have such approvals
would not have a Material Adverse Effect; except as otherwise
provided in the Time of Sale Prospectus and the Prospectus, none of
the Broker-Dealer Subsidiaries or
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Investment Advisor Subsidiaries has
received any notification from any applicable regulatory authority
to the effect that any additional approvals from such regulatory
authority are needed to be obtained by such subsidiary and have not
been obtained, in any case where it could be reasonably expected
that the Broker-Dealer Subsidiary will be unable to obtain such
additional approvals and the failure to obtain any such additional
approvals would require such Subsidiary to cease or otherwise
materially limit the conduct of its business; and each
Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is
in compliance with the requirements of the broker-dealer and
investment advisor laws and regulations of each jurisdiction that
are applicable to such Subsidiary, and has filed all notices,
reports, documents or other information required to be filed
thereunder, with such exceptions as would not have, individually or
in the aggregate, a Material Adverse Effect; and
(xxviii) There are no contracts or
documents required to be described or referred to in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus or to be filed as exhibits thereto which have not been
so described and filed as required.
(b) Each of the Selling Stockholders
severally represents and warrants to, and agrees with, each of the
Underwriters and the Company that:
(i) All consents, approvals,
authorizations and orders necessary for the execution and delivery
by such Selling Stockholder of this Agreement and the Power of
Attorney, the Custody Agreement and the Option Exercise Notice, if
applicable, and for the sale and delivery of the Shares to be sold
by such Selling Stockholder hereunder, have been obtained; and such
Selling Stockholder has full right, power and authority to enter
into this Agreement, the Power of Attorney, the Custody Agreement
and the Option Exercise Notice, if applicable, and to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder;
(ii) The sale of the Shares to be
sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement, the Power of Attorney, the Custody Agreement and the
Option Exercise Notice, if applicable, and the consummation by such
Selling Stockholder of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any
violation of the provisions of the constituent documents of such
Selling Stockholder if such Selling Stockholder is a corporation or
other entity, or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
such Selling Stockholder or the property of such Selling
Stockholder;
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(iii) Such Selling Stockholder is,
and immediately prior to each Time of Delivery (as defined in
Section 4 hereof) such Selling Stockholder will be, except
with respect to the registered ownership of such Shares at such
times as the Custodian is the registered owner, the sole registered
and beneficial owner of the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances,
equities or claims; and, upon delivery of such Shares as directed
by the Underwriters, to a nominee designated by The Depository
Trust Company (“DTC”) and payment therefor pursuant
hereto, (a) DTC will be a “protected purchaser”
(as defined under Section 8-303 of the Uniform Commercial Code
of Delaware (the “Delaware UCC”)) provided that it has
no “notice” of an adverse claim within the meaning of
Section 8-105 of the Delaware UCC, (b) the respective
Underwriters, upon the crediting of such Shares on the records of
DTC to securities accounts of the respective Underwriters, will
acquire a security entitlement in respect of such Shares under
Section 8-501 of the Uniform Commercial Code of New York (the
“New York UCC”) and (c) no action based on an
adverse claim to such security entitlement may be asserted against
the respective Underwriters provided that they have no
“notice” of such adverse claim within the meaning of
Section 8-105 of the New York UCC;
(iv) During the period beginning
from the date hereof and continuing to and including the date 90
days after the date of the Prospectus, 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 (i) pursuant to stock-based compensation or
incentive plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date
of this Agreement, (ii) or as otherwise provided in the
lock-up agreement entered into between such Selling Stockholder and
the Underwriters, (iii) the sale by Apollo of shares of common
stock to the Company as described in the Time of Sale Prospectus,
(iv) to or among such Selling Stockholder’s spouse
children, grandchildren, or other living descendants, or to a trust
or family partnership of which there are no principal (i.e. corpus)
beneficiaries or partners other than the grantor or one or more of
such Selling Stockholder, the Selling Stockholder’s spouse or
described relatives and, provided, in the case of a trust, that
existing beneficiaries and/or trustee(s) and/or grantor(s) of such
trust have the power to act with respect to the trust’s
assets without court approval and, in the case of a family
partnership, that the partners thereof have the power to act with
respect to the partnership’s assets without court approval
and the partnership is not permitted to (x) distribute assets
to persons who are not among the relatives listed above or
(y) have partners who are not among the relatives listed
above, (v) to a legal or personal representative of such
Selling Stockholder in the event of the Selling Stockholder’s
death or inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to be long-continued and of indefinite
duration, (vi) pursuant to a qualified domestic relations
order, (vii) to a management company or manager of a
subsidiary of the Company, to any
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Affiliate thereof, or to any
Principal (as such term is defined in the management agreement
between such Selling Stockholder and the Company, if any) or other
employee of such a management company, (viii) in the event of
the death of the Selling Stockholder, upon a determination by the
board of directors of the Company that the provisions of this
Section 1(b)(iv) result in undue hardship including, without
limitation, because of an obligation to pay estate taxes, subject
to such terms and conditions as are determined by the board of
directors of the Company and (ix) upon a waiver of the
provisions of this Section 1(b)(iv) by the board of directors
of the Company in connection with any business combination,
restructuring, recapitalization or other extraordinary transaction
that has been approved by a majority of the board of directors of
the company), without your prior written consent; provided,
however , that in the case of such a transfer or any other
transfer contemplated by clause (iv), (v), (vi), or
(vii) above, it shall be a condition to the transfer that the
transferee execute an agreement stating that the transferee is
receiving and holding such capital stock subject to the provisions
of this subsection, and there shall be no further transfer of such
capital stock except in accordance with this subsection, and
provided further that any such transfer shall not involve a
disposition for value;
(v) Such Selling Stockholder has not
taken and will not take, directly or indirectly, any action which
is designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Shares;
(vi) To the extent that any
statements or omissions made in the Registration Statement, any
Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus
or any amendment or supplement thereto are made in reliance upon
and in conformity with written information furnished to the Company
by such Selling Stockholder expressly for use therein, such
Preliminary Prospectus, Time of Sale Prospectus and 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. To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Time of
Sale Prospectus, the Prospectus or any amendment or supplement
thereto or any Issuer Free Writing Prospectus are made in reliance
upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use therein, such
Preliminary Prospectus, Time of Sale Prospectus, Registration
Statement, Prospectus and any further amendments or supplements
thereto or Issuer Free Writing Prospectus, 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;
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(vii) In order to document the
Underwriters’ compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the Time of Delivery
(as hereinafter defined) a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof);
(viii) All of the Shares to be sold
by such Selling Stockholder hereunder have been transferred or, in
the case of the Stockholder Option Shares, will be transferred
prior to the Time of Delivery of such Shares, for registration in
the name of Mellon Investor Services LLC, as Custodian (the
“Custodian”) under a Custody Agreement, in the form
heretofore furnished to you (the “Custody Agreement”),
duly executed and delivered by such Selling Stockholder to the
Custodian, and such Selling Stockholder has duly executed and
delivered a Power of Attorney, in the form heretofore furnished to
you (the “Power of Attorney”), appointing the persons
indicated in footnote (a) in Schedule II hereto, and each of
them, as such Selling Stockholder’s attorneys-in-fact (the
“Attorneys-in-Fact”) with authority to execute and
deliver this Agreement on behalf of such Selling Stockholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Stockholders as provided in Section 2 hereof, to
authorize the Custodian to instruct the transfer agent of the
Company to transfer the registered ownership of the Shares to be
sold by such Selling Stockholder hereunder and otherwise to act on
behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Custody
Agreement, and if such Selling Stockholder is selling Shares
hereunder pursuant to the cashless exercise of options to purchase
shares of Stock (“Stock Options”), such Selling
Stockholder has duly executed and delivered an Option Exercise
Consent Agreement in respect of such Stock Options and has
(i) duly executed and delivered, (ii) completed by
Internet or (iii) completed by telephone election method a
Stockholder Secondary Offering Participation Election Form, each in
the form heretofore furnished to you, (collectively, the
“Option Exercise Notice”), providing for, among other
things, the exercise of certain of such Selling Stockholder’s
Stock Options and the issuance of such Selling Stockholder’s
Stockholder Option Shares;
(ix) The Shares to be sold by such
Selling Stockholder hereunder were registered in the name of the
Custodian under the Custody Agreement or, in the case of such
Selling Stockholder’s Stockholder Option Shares, will be
registered prior to the Time of Delivery of such Shares, and are
(or will be, as applicable) subject to the interests of the
Underwriters hereunder; the arrangements made by such Selling
Stockholder under the Custody Agreement and the Option Exercise
Notice, if applicable, and the appointment by such Selling
Stockholder of the Attorneys-in-Fact by the Power of Attorney, are
irrevocable; the obligations of the Selling Stockholders hereunder
will not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the case of
an estate or trust, by the death or incapacity of any executor or
trustee or
12
the termination of such estate or
trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the
occurrence of any other event; if any individual Selling
Stockholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be terminated,
or if any such partnership or corporation should be dissolved, or
if any other such event should occur, before the delivery of the
Shares hereunder, the Shares will be transferred by or on behalf of
the Selling Stockholders in accordance with the terms and
conditions of this Agreement and of the Custody Agreements; and
actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney and the Option Exercise Notice, if applicable, will 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, the Company or any of them, shall
have received notice of such death, incapacity, termination,
dissolution or other event; and
(x) Neither the Selling Stockholder
nor any of its affiliates directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section (dd) of the By-laws of the National
Association of Securities Dealers, Inc. (the “NASD”),
any member firm of the NASD.
2. Subject to the terms and
conditions herein set forth, (a) each of the Selling
Stockholders, (excluding Apollo) agrees, severally and not jointly,
to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from each of such
Selling Stockholders, at a purchase price per share of $45.52, the
number of Firm Shares (to be adjusted by the Representatives to
eliminate fractional shares) determined by multiplying the
aggregate number of Shares to be sold by such Selling Stockholders
(excluding Apollo) as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the
aggregate number of Firm Shares to be purchased by such Underwriter
in Schedule I(a) hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the
Underwriters from all of the Selling Stockholders hereunder
(excluding Apollo) and (b) Apollo agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from Apollo, at a purchase price per
share of $42.22, the number of Firm Shares (to be adjusted by the
Representatives to eliminate fractional shares) determined by
multiplying the aggregate number of Shares to be sold by Apollo as
set forth opposite its name in Schedule II hereto by a fraction,
the numerator of which is the aggregate number of Firm Shares to be
purchased by such Underwriter in Schedule I(b) hereto and the
denominator of which is the aggregate number of Firm Shares to be
purchased by all of the Underwriters from Apollo. In the event and
to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, each of the Selling
Stockholders agrees, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from each of the Selling Stockholders,
at the purchase price per shares set forth in clauses (a) and
(b) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised
(to be adjusted by the Representatives so as to eliminate
fractional shares) determined by multiplying such number of
Optional Shares by a fraction the numerator of which is the
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