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Exhibit 1.1
GateHouse Media,
Inc.
Common Stock, par value
$0.01
Underwriting
Agreement
July 17, 2007
Goldman, Sachs &
Co.,
Wachovia Capital Markets,
LLC,
Morgan Stanley & Co.
Incorporated
As
representatives 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:
GateHouse Media, Inc., a
Delaware corporation (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 17,000,000 shares (the
“Firm Shares”) and, at the election of the
Underwriters, up to 1,700,000 additional shares (the
“Optional Shares”) of common stock, par value $0.01
(“Stock”), of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof being collectively called the
“Shares”).
It is understood that
approximately 1,700,000 of the Firm Shares (the “Directed
Shares”) will initially be reserved by the Underwriters for
offer and sale upon the terms and conditions set forth in the
Prospectus (as defined below) and in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc.
(the “NASD”) to employees of the Company and its
subsidiaries, employees of Fortress Investment Group, LLC and its
subsidiaries and persons having business relationships with the
Company and its subsidiaries or Fortress Investment Group, LLC and
its subsidiaries who have heretofore delivered to Wachovia Capital
Markets, LLC or Bear, Stearns & Co., Inc. (collectively,
in such capacity, the “DSP Managers” and each, in such
capacity, a “DSP Manager”) offers or indications of
interest to purchase Firm Shares in form satisfactory to a DSP
Manager (such program, the “Directed Share Program”)
and that any allocation of such Firm Shares among such persons will
be made in accordance with timely directions received by the DSP
Managers from the
Company; provided , that under no
circumstances will the DSP Managers or any Underwriter be liable to
the Company or to any such person for any action taken or omitted
in good faith in connection with such Directed Share Program. It is
further understood that any Firm Shares which are not purchased by
such persons will be offered by the Underwriters to the public upon
the terms and conditions set forth in the Prospectus.
1. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement
on Form S-1 (File No. 333-144227) (the “Initial
Registration Statement”) in respect of the Shares has been
filed with the Securities and Exchange Commission (the
“Commission”); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto but including all
documents incorporated by reference in the prospectus contained
therein, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering
(a “Rule 462(b) Registration Statement”), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is
hereinafter called a “Preliminary Prospectus”; the
various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits
thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the
“Registration Statement”; the Preliminary Prospectus
relating to the Shares that was included in the Registration
Statement immediately prior to the Applicable Time (as defined in
Section 1(c) hereof) is hereinafter called the “Pricing
Prospectus”; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
“Prospectus”; any reference herein to any Preliminary
Prospectus, the Pricing 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-1 under the
Act, as of the date
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of such prospectus; 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 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 an Underwriter
through Goldman, Sachs & Co. expressly for use
therein;
(c) For the purposes of this
Agreement, the “Applicable Time” is 5:00 pm (New York
City time) on the date of this Agreement; the Pricing Prospectus as
supplemented by the Issuer Free Writing Prospectus listed on
Schedule II(c) hereto, taken together (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 II(a) or Schedule II(c) 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 the Pricing Prospectus or 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 Securities Exchange Act of
1934, as amended (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;
provided , however, that this representation and warranty
shall not apply to any statements or omissions
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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 the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule II(b)
hereto;
(e) The Registration
Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and 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 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 Goldman, Sachs & Co. expressly for use
therein;
(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, there has not
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change
in, or affect on, the general affairs, management, financial
position, stockholders’ equity or results of operations, as
applicable, of the Company and its subsidiaries taken as a whole (a
“Material Adverse Effect”), otherwise than as set forth
or contemplated in the Pricing Prospectus;
(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 (1) are described in
the Pricing Prospectus or (2) would not, individually or in
the aggregate, have 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 described in the
Pricing Prospectus or as would not, individually or in the
aggregate, have a Material Adverse Effect;
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(h) 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 Pricing Prospectus, and 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 to the extent
that the failure to be so qualified in any such jurisdiction would
not, individually or in the aggregate, have a Material Adverse
Effect; and each subsidiary of the Company has been duly organized,
is validly existing and is in good standing under the laws of its
jurisdiction of incorporation or formation, as
applicable;
(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 and are fully paid and
non-assessable and conform, and will conform, to the description of
the Stock contained in the Pricing Disclosure Package and
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 are owned directly or
indirectly by the Company (with the exception of certain limited
liability company interests of Liberty SMC, LLC held by current and
former members of the Company’s management), free and clear
of all liens, encumbrances, equities or claims, except as described
in the Pricing Prospectus;
(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
against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Pricing Prospectus
and the Prospectus;
(k) The issue and sale of the
Shares and the compliance by the Company with 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, (1) 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, (2) the
provisions of the Certificate of Incorporation or By-laws of the
Company or (3) 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 (1) and (3) for such
conflicts, breaches, defaults or violations that would not,
individually or in the aggregate, result in a Material Adverse
Effect; and no material 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
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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 or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters;
(l) This Agreement has been
duly authorized, executed and delivered by the Company;
(m) Neither the Company nor
any of its subsidiaries is (1) in violation of its certificate
of incorporation, by-laws, limited liability company operating
agreement or partnership agreement, as applicable, or (2) 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, except in the case of clause (1), but only
with respect to subsidiaries of the Company, and clause
(2) for such violations or defaults that would not,
individually or in the aggregate, have a Material Adverse
Effect;
(n) The statements set forth
in the Pricing Prospectus and Prospectus under the caption
“Description of Capital Stock”, insofar as they purport
to constitute a summary of the terms of the Stock, under the
caption “Certain United States Federal Income 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, complete and fair;
(o) 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
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(p) The Company is not and,
after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(q) At the time of filing the
Initial Registration Statement the Company was not and is not an
“ineligible issuer,” as defined under Rule 405 under
the Act;
(r) KPMG LLP, who have
certified certain financial statements of (i) the Company and
its subsidiaries (other than Enterprise NewsMedia, LLC) and
(ii) The Midwest Newspaper Business of The Copley Press, Inc.,
PriceWaterhouseCoopers LLP, who have certified certain financial
statements of CP Media and Enterprise NewsMedia, LLC, Grant
Thornton LLP, who have certified certain financial statements of
Enterprise NewsMedia, LLC, and Ernst & Young, LLP, who
have certified certain financial statements of certain
acquired
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newspapers of Gannett Co., Inc. (the
“Carved-out Newspapers of Gannett Co., Inc.”), are each
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(s) Except as disclosed in
the Pricing Prospectus, the Company maintains a system of internal
control over financial reporting (as such term is defined in Rule
13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial
officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. The
Company’s internal control over financial reporting is
effective and, except as disclosed in the Pricing Prospectus, the
Company is not aware of any material weaknesses in its internal
control over financial reporting;
(t) Except as disclosed in
the Pricing Prospectus, since the date of the latest audited
financial statements included or incorporated by reference in the
Pricing Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting;
(u) Except as disclosed in
the Pricing Prospectus, 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;
(v) Except as disclosed in
the Pricing Prospectus, each of the Company and its subsidiaries
maintains insurance covering its properties, operations, personnel
and businesses which insures against such losses and risks as are
adequate in accordance with its reasonable business judgment to
protect the Company and its subsidiaries and their
businesses;
(w) No labor dispute with the
employees of the Company or any of its subsidiaries exists, or, to
the knowledge of the Company, is imminent, except as described in
or contemplated by the Pricing Prospectus, and except as has not
had, and would not have, a Material Adverse Effect; and the Company
is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that would have a Material Adverse
Effect;
(x) Each of the Company and
its subsidiaries owns or possesses or has the right to use the
licenses, material copyrights, know-how (including trade
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secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), domain names, trademarks, service marks and trade
names (collectively, the “Intellectual Property”)
presently employed by it in connection with its operations, except
where the failure to own or possess or have the right to use such
Intellectual Property would not, individually or in the aggregate,
have a Material Adverse Effect; 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 the
foregoing. To the knowledge of the Company, the use of such
Intellectual Property in connection with the business and
operations of the Company and its subsidiaries as described in the
Pricing Prospectus does not infringe on the rights of any
person;
(y) There are no persons with
registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or
included in the offering contemplated by this Agreement, except for
such rights as have been duly waived;
(z) The financial statements
included or incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Prospectus present fairly
the consolidated financial position of the Company and its
subsidiaries, CP Media and its subsidiaries, Enterprise NewsMedia,
LLC and its subsidiaries, The Midwest Newspaper Business of The
Copley Press, Inc. and the Carved-out Newspapers of Gannett Co.,
Inc., as applicable, as of and at the dates indicated and the
results of their operations and cash flows for the periods
specified. The supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein. Such financial statements and supporting schedules have
been prepared in conformity with generally accepted accounting
principles as applied in the United States applied on a consistent
basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. The financial data set forth
or incorporated by reference in the Pricing Prospectus and the
Prospectus under the captions “Prospectus
Summary—Summary Consolidated Financial Data”,
“Selected Consolidated Financial and Other Data” and
“Capitalization” fairly present the information set
forth therein on a basis consistent with that of the audited
financial statements contained or incorporated by reference in the
Registration Statement, the Pricing Prospectus and the Prospectus.
The pro forma consolidated financial statements of the Company and
its subsidiaries and the related notes thereto included under the
caption “Prospectus Summary—Summary Pro Forma
Consolidated Selected Financial Data”, “Pro Forma
Consolidated Selected Financial Data” and elsewhere or
incorporated by reference in the Pricing Prospectus and in the
Registration Statement present fairly the information contained
therein, have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma
financial statements and have been properly presented on the bases
described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the
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transactions and circumstances referred
to therein. To the knowledge of the Company, no person who has been
suspended or barred from being associated with a registered public
accounting firm, or who has failed to comply with any sanction
pursuant to Rule 5300 promulgated by the Public Company Accounting
Oversight Board, has participated in or otherwise aided the
preparation of, or audited, the financial statements, supporting
schedules or other financial data filed with the Commission as a
part of or incorporated by reference in the Registration Statement
and included in the Pricing Prospectus and the
Prospectus;
(aa) All tax returns required
to be filed by the Company and its subsidiaries in all
jurisdictions have been timely and duly filed, other than those
filings being contested in good faith and except where the failure
to file would not, individually or in the aggregate, have a
Material Adverse Effect. There are no tax returns of the Company or
its subsidiaries that are currently being audited by state, local
or federal taxing authorities or agencies (and with respect to
which the Company or its subsidiaries has received notice), where
the findings of such audit would result in a Material Adverse
Effect. All taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due or claimed to be
due from such entities, have been paid, other than those being
contested in good faith and for which adequate reserves have been
provided or those currently payable without penalty or interest or
those that would not result in a Material Adverse
Effect;
(bb) There are no business
relationships or related-party transactions involving the Company
or any of its subsidiaries or any other person, or contracts or
other documents, of a character required to be described in the
Pricing Prospectus or, in the case of contracts or other documents,
filed as exhibits to the Registration Statement which have not been
described or filed as required. The description of any such
business relationship, related party transaction, contract or other
document in the Pricing Prospectus is a fair and accurate
description in all material respects of the applicable relationship
or document;
(cc) Except as described in
the Pricing Prospectus and except as would not, individually or in
the aggregate, have a Material Adverse Effect, (1) neither the
Company nor any of its subsidiaries is in violation of any
applicable federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
applicable judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, applicable laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively,
“Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (2) the Company
and
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its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements and (3) there are no pending or, to the knowledge
of the Company, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of its
subsidiaries;
(dd) Except as would not ,
individually or in the aggregate, have a Material Adverse Effect,
each of the Company and its subsidiaries is in compliance in all
material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ERISA”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “pension
plan” (as defined in ERISA) for which the Company or any of
its subsidiaries would have any material liability; each of the
Company and its subsidiaries has not incurred and does not
reasonably expect to incur liability under (1) Title IV of
ERISA with respect to termination of, or withdrawal from, any
“pension plan” or (2) Section 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
“Code”); and each “pension plan” for which
the Company or any of its subsidiaries would have any material
liability, that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such
qualification;
(ee) The Company has not been
advised, and has no reason to believe, that it and each of its
subsidiaries are not conducting business in compliance with all
applicable laws, rules and regulations of the jurisdictions in
which it is conducting business, except where failure to be so in
compliance would not have a Material Adverse Effect;
(ff) Except as described in
the Pricing Prospectus and as limited by applicable laws, no
subsidiary of the Company is prohibited or restricted, directly or
indirectly, from paying dividends to the Company, or from making
any other distribution with respect to such subsidiary’s
equity securities or from repaying to the Company or any other
subsidiary of the Company any amounts that may from time to time
become due under any loans or advances to such subsidiary from the
Company or from transferring any property or assets to the Company
or to any other subsidiary;
(gg) Since June 30,
2006, the Company has not, directly or indirectly, including
through any subsidiary: (1) extended credit, arranged to
extend credit, or renewed any extension of credit, in the form of a
personal loan, to or for any director or executive officer of the
Company, or to or for any family member or affiliate of any
director or executive officer of the Company; or (2) made any
material modification, including any renewal thereof, to any term
of any personal loan to any director or executive officer of the
Company, or any family member or affiliate of any director or
executive officer, which loan was outstanding on June 30,
2006;
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(hh) The Registration
Statement, the Prospectus and any Preliminary Prospectus comply,
and any further amendments or supplements thereto will comply, with
any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any Preliminary Prospectus, as amended or
supplemented, if applicable, are distributed in connection with the
Directed Share Program. No consent, approval, authorization or
order of, or filing or registration with, any court or governmental
agency or body, other than such as have been obtained, is required
under the securities laws and regulations of any foreign
jurisdiction in which the Directed Shares are offered or sold
outside the United States; and
(ii) Except for the
underwriting discounts and commissions payable to the Underwriters
as described in the Pricing Prospectus and the Prospectus, there is
no broker, finder or other party that is entitled to receive from
the Company any brokerage or finder’s fee or other fee or
commission as a result of any transactions contemplated by this
Agreement.
2. Subject to the terms and
conditions herein set forth, (a) the Company agrees to issue
and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $17.80, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto
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 issue and 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 2, 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 hereby grants to
the Underw
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