Exhibit 1.1
7,625,110 Shares
SAVVIS, INC.
Common Stock (Par Value $0.01 Per
Share)
UNDERWRITING
AGREEMENT
January 17, 2007
January 17, 2007
Morgan Stanley & Co.
Incorporated
Goldman, Sachs & Co.
Lehman Brothers Inc.
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c/o
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Morgan
Stanley & Co. Incorporated
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Ladies and Gentlemen:
MLT, LLC, a Delaware limited
liability company (the “ Selling Shareholder ”),
a stockholder of SAVVIS Inc., a Delaware corporation (the “
Company ”), proposes to sell to the several
Underwriters named in Schedule I hereto (the “
Underwriters ”), an aggregate of 7,625,110 shares (the
“ Shares ”), of the common stock, par value
$0.01 per share, of the Company, (the “ Common Stock
”).
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement on Form S-3 (File
No. 333-136028), including a prospectus, relating to the
Common Stock (the “ Shelf Securities ”),
including the Shares, to be sold by certain stockholders of the
Company. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness
pursuant to Rule 430A or 430B under the Securities Act of
1933, as amended (the “ Securities Act ”), is
hereinafter referred to as the “ Registration
Statement ”, and the related prospectus covering the
Shelf Securities dated January 4, 2007 is hereinafter referred
to as the “ Base Prospectus .” The Base
Prospectus, as supplemented by the prospectus supplement
specifically relating to the Shares in the form first used to
confirm sales of the Shares (or in the form first made available to
the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter
referred to as the “ Prospectus ,” and the term
“ preliminary prospectus ” means the Base
Prospectus as supplemented by the preliminary prospectus supplement
dated January 8, 2007. If the Company has filed an abbreviated
registration statement to register additional shares of Common
Stock pursuant to Rule 462(b) under the Securities Act (the “
Rule 462(b) Registration Statement ”), then any
reference herein to the term “ Registration Statement
” shall be deemed to include such Rule 462(b) Registration
Statement.
For purposes of this Agreement,
“ free writing prospectus ” has the meaning set
forth in Rule 405 under the Securities Act, “ Time of
Sale
Prospectus ” means the preliminary prospectus
together with the free writing prospectuses, if any, each
identified in Schedule III hereto and the information set
forth on Schedule III-A hereto, and “ broadly available
road show ” means a “bona fide electronic road
show” as defined in Rule 433(h)(5) under the Securities Act
that has been made available without restriction to any person. 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 preliminary
prospectus, the Time of Sale Prospectus, the 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 deemed to be incorporated by reference
therein.
1.
Representations and Warranties of the
Company . The Company represents and warrants to and agrees
with each of the Underwriters 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 knowledge of the Company, threatened by the
Commission.
(b) (i) Each
document filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or 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 as of the date hereof does 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, (iv) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (v) the Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with
the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in
Section 5), 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,
(vi) each broadly available road show, if any, when considered
together with the Time of Sale Prospectus, does not
contain
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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 (vii) 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 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 III
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.
(d) The
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus 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 have a material adverse
effect on the Company and its subsidiaries, taken as a whole; each
such jurisdiction is set forth on Schedule IV hereto.
(e) Each
“significant subsidiary” (within the meaning of
Rule 1-02(w) of Regulation S-X under the Securities Act)
of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus 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
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of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; all of the issued and
outstanding 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 are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) The
authorized capital 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 (including the Shares to be sold by the
Selling Shareholder) outstanding prior to the sale of the Shares to
be sold by the Selling Shareholder have been duly authorized and
are validly issued, fully paid and non-assessable.
(i) The
execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, except for those that have been obtained and such as may
be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the
Shares.
(j) There has
not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, 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.
(k) 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; and there are no statutes, regulations,
contracts or other documents that are required to be described in
the
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Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described or filed as required.
(l) Each
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.
(m) The
Company is not, and after giving effect to the offering and sale of
the Shares 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.
(n) The
Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(o) There are
no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in
the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(p) Except as
disclosed in the preliminary prospectus and 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, other than rights that have been
waived.
(q) The
Company and its subsidiaries own or possess, or license or have the
right to use, or can acquire on reasonable terms, all material
patents,
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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, and neither the Company nor any of its 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, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(r) The
Company has received the consideration for the Shares specified in
the Exchange and Recapitalization Agreement (the “Exchange
Agreement”), dated as of May 10, 2006, by and among the
Company and each of the investors set forth therein.
2.
Representations and Warranties of the
Selling Shareholder . The Selling Shareholder represents and
warrants to and agrees with each of the Underwriters
that:
(a) This
Agreement has been duly authorized, executed and delivered by the
Selling Shareholder.
(b) The
execution and delivery by the Selling Shareholder of, and the
performance by the Selling Shareholder of its obligations under,
this Agreement, will not contravene any provision of applicable
law, or the certificate of incorporation or by-laws of the Selling
Shareholder, or any agreement or other instrument binding upon the
Selling Shareholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Selling Shareholder, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Selling Shareholder of its
obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(c) The
Selling Shareholder has, and on the Closing Date will have, valid
title to, or a valid “security entitlement” within the
meaning of Section 8-501 of the New York Uniform Commercial
Code in respect of, the Shares to be sold by the Selling
Shareholder free and clear of all security interests, claims,
liens, equities or other encumbrances and the legal right and
power, and all authorization and approval required by law, to enter
into this Agreement and to sell, transfer and deliver the Shares to
be sold by the Selling Shareholder or a security entitlement in
respect of such Shares.
(d) Delivery
of the Shares to be sold by the Selling Shareholder and payment
therefor pursuant to this Agreement will pass valid title to the
Shares,
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free and clear of any adverse claim within the
meaning of Section 8-102 of the New York Uniform Commercial
Code, to each Underwriter who has purchased such Shares without
notice of an adverse claim.
(e) (i) The
Registration Statement, when it became effective, did not contain,
as amended or supplemented, if applicable, and 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, (ii) the Registration
Statement as of the date hereof does 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 Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with
the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in
Section 5), 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, each
broadly available road show, if any, when considered together with
the Time of Sale Prospectus, does 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 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, provided that the representations and warranties
set forth in this paragraph 2(e) are limited to statements or
omissions made in reliance upon information relating to the Selling
Shareholder furnished to the Company in writing by the Selling
Shareholder expressly for use in the Registration Statement, the
Prospectus or any amendments or supplements thereto.
3.
Agreements to Sell and Purchase .
The Selling Shareholder 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, severally and not jointly,
to purchase from the Selling Shareholder at $37.1475 a share (the
“ Purchase Price ”) the respective number of
Shares opposite the name of such Underwriter on Schedule I
hereto.
4. Terms
of Public Offering . The Company and the Selling Shareholder
are advised by you that the Underwriters propose to make a public
offering of their respective portions of the Shares as soon after
the Registration Statement and this Agreement have become effective
as in your judgment is advisable. The Company and the Selling
Shareholder are further advised by you that the Shares are to be
offered to the public initially at $39.00 a share (the “
Public Offering
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Price ”) and to certain dealers selected by you
at a price that represents a concession not in excess of $0.9945 a
share under the Public Offering Price.
5.
Payment and Delivery . Payment for the Shares to be sold by
the Selling Shareholder shall be made to the Selling Shareholder 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
January 23, 2007, or at such other time on the same or such
other date, not later than January 24, 2007, as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the “ Closing Date
.”
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.
6.
Conditions to the Underwriters’
Obligations . The obligations of the Selling Shareholder to
sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing
Date are subject to the condition that the Registration Statement
shall have become effective prior to the date hereof.
The several obligations of the
Underwriters are subject to the following further
conditions:
(a) Subsequent to the
execution and delivery of this Agreement and prior to the Closing
Date:
(i) 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 that does not indicate the direction
of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any
“nationally recognized statistical rating
organization,” as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, 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 that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the Shares
on the terms and in the manner contemplated in the Time of Sale
Prospectus.
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(b) The
Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by the Chief Executive Officer or
Chief Financial Officer of the Company, to the effect set forth in
Section 6(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 of
Hogan & Hartson LLP, outside counsel for the Company,
dated the Closing Date in the form attached as Exhibit B hereto,
and an opinion of Meredith M. Todd, Associate General Counsel of
the Company, dated the Closing Date in the form attached hereto as
Exhibit C.
(d) The
Underwriters shall have received on the Closing Date an opinion of
Latham & Watkins LLP, counsel for the Selling Shareholder,
dated the Closing Date in the form attached hereto as
Exhibit D.
(e) The
Underwriters shall have received on the Closing Date an opinion of
Davis Polk & Wardwell, counsel for the Underwriters, dated
the Closing Date, in form and substance reasonably satisfactory to
the Underwriters.
The opinions of Hogan &
Hartson LLP, the Associate General Counsel of the Company and
Latham & Watkins LLP described in Sections 6(c) and
6(d) above shall be rendered to the Underwriters at the request of
the Company or the Selling Shareholder, as the case may be, and
shall so state therein.
(f) 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 Ernst & Young 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 or
incorporated by reference into 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.
(g) The
“lock-up” agreements, each substantially in the form of
Exhibit A hereto, between you and the stockholders of the Company
listed on Schedule II hereto and the officers and directors of the
Company relating to sales and certain other dispositions of shares
of Common Stock or certain other
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securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing
Date.
7.
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 documents
incorporated by reference therein) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto but including documents incorporated by reference
therein) 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 and during the period
mentioned in Section 7(e) or 7(f) below, as many copies of the
Time of Sale Prospectus, the Prospectus and any documents
incorporated therein by reference 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, 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.
(c) To
furnish to you a copy of each proposed free writing prospectus to
be 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 would result in an Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d)
under the Securities Act a free writing prospectus prepared by or
on behalf of the Underwriter that the Underwriter otherwise would
not have been required to file thereunder.
(e) If the
Time of Sale Prospectus is being used to solicit offers to buy the
Shares at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the
Time of Sale Prospectus in order to make the statements therein, in
the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of
Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable
law,
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forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any
dealer upon request, either amendments or supplements to the Time
of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of
the circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f) If,
during such period after the first date of the public offering of
the Shares as in the opinion of counsel for the Underwriters the
Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act) is required by law to be delivered
in connection with sales by an Underwriter or dealer, any event
shall occur or condition exist as a result of which it is necessary
to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act) is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus (or in lieu thereof
the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with law.
(g) To
endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(h) To make
generally available to the Company’s security holders
a