Exhibit 1.1
27,861,235 Shares
MSCI INC.
Class A Common Stock (Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
April
28, 2008
April
28, 2008
Morgan
Stanley & Co. Incorporated
UBS
Securities LLC
Banc
of America Securities LLC
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
William
Blair & Company, L.L.C.
Fox-Pitt
Kelton Cochran Caronia Waller (USA) LLC
Keefe,
Bruyette & Woods, Inc.
c/o Morgan
Stanley & Co. Incorporated
1585
Broadway
New
York, New York 10036
Ladies
and Gentlemen:
Certain
shareholders of MSCI Inc., a Delaware corporation which is
registered to do business in New York as NY MSCI Inc. (the
“ Company ”),
named in Schedule I hereto (the “ Selling
Shareholders ”), severally propose to sell to the
several Underwriters named in Schedule II hereto (the “
Underwriters
”) an aggregate of 27,861,235 shares (the “
Firm
Shares ”) of the Company’s Class A Common
Stock, par value $0.01 per share (the “ Class A Common
Stock ”), each Selling Shareholder selling the
amount set forth opposite such Selling Shareholder’s
name in Schedule I hereto.
Morgan
Stanley, a Delaware corporation (“ Morgan Stanley
”), which is a Selling Shareholder, also proposes to
sell to the several Underwriters not more than an additional
3,000,000 shares of Class A Common Stock (the “
Additional
Shares ”) if and to the extent that Morgan
Stanley & Co. Incorporated, as a manager of the offering,
shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of Class A
Common Stock granted to the Underwriters in Section 3
hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “
Shares
.” The shares of Class A Common Stock and Class B Common
Stock, par value $0.01 per share, of the Company to be
outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to collectively as the “
Common
Stock .”
The
Company has filed with the Securities and Exchange Commission
(the “ Commission
”) a registration statement, including a prospectus,
relating to the Shares. 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 under the Securities Act of 1933, as amended
(the “ Securities Act
”), is hereinafter referred to as the “
Registration
Statement ”; the prospectus, including the base
prospectus and prospectus supplement, in the form first used
to confirm sales of 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
.” 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 Registration
Statement ”), then any reference herein to the term
“ Registration Statement
” shall be deemed to include such Rule 462 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,
including the base prospectus and the preliminary prospectus
supplement, together with the free writing prospectuses, if
any, and the term sheets communicated pursuant to
Rule 134 under the Securities Act, if any, each
identified in Schedule III 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.
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
threatened by the Commission.
(b)
(i)
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, (ii) 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, (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, (iv) 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 (v) 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, each 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.
(e)
Each
subsidiary 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 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 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 will, on the Closing Date
(as defined in Section 5), conform 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 Shareholders) 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 (i) any provision of applicable law, (ii) any provision
of the certificate of incorporation or by-laws of the Company,
(iii) 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 (iv) any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, except, in the
case of clauses (i) and (iv) above, where such contravention would
not, singly or in the aggregate, have a material adverse effect on
the Company or on the power and ability of the Company to perform
its obligations under this Agreement or to consummate the
transactions contemplated by the Time of Sale
Prospectus. 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 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 and except for any such
consents, approvals, authorizations, orders or qualifications the
absence of which would not, singly or in the aggregate, have a
material adverse effect on the Company or on the power and ability
of the Company to perform its obligations under this Agreement or
to consummate the transactions contemplated by the Time of Sale
Prospectus.
(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 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 (i) other than proceedings accurately described in all
material respects in the Time of Sale Prospectus and proceedings
that would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, or on the power or ability of
the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale
Prospectus or (ii) 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 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 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 described in the Time of Sale Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect
to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
(q)
Subsequent
to the respective dates as of which information is given in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, (i) the Company and its subsidiaries have not incurred
any material liability or obligation, direct or contingent, nor
entered into any material transaction; (ii) the Company has not
purchased any of its outstanding capital stock, nor declared, paid
or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and
(iii) there has not been any material change in the capital stock,
short term debt or long term debt of the Company and its
subsidiaries, except in each case as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus,
respectively.
(r)
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 which is material to the business
of the Company and its subsidiaries, 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 do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as
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, in each case except as described in the Time
of Sale Prospectus.
(s)
The
Company and its subsidiaries own or possess or, to the knowledge of
the Company, it or its subsidiaries can acquire on reasonable
terms, all material patents, patent rights, 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, except in
each case which, singly or in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(t)
No
material labor dispute with the employees of the Company or any of
its subsidiaries exists, except as described in the Time of Sale
Prospectus, or, to the knowledge of the Company, is imminent; 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 could have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(u)
The
Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses
in which they are engaged; neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or
applied for; and neither the Company nor any of its subsidiaries
has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or 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 on the Company and its subsidiaries, taken as a
whole, except as described in the Time of Sale
Prospectus.
(v)
The
Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state
or foreign regulatory authorities necessary to conduct their
respective businesses, except as would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and
neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit 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, except as described in the Time
of Sale Prospectus.
(w)
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 authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken
with
respect to any differences. Except as described in the
Time of Sale Prospectus, since the end of the Company’s most
recent audited fiscal year, there has been (i) no material weakness
in the Company’s internal control over financial reporting
(whether or not remediated) and (ii) 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.
(x)
Except
as described in the Time of Sale Prospectus, the Company has not
sold, issued or distributed any shares of Common Stock during the
six-month period preceding the date hereof, including any sales
pursuant to Rule 144A under, or Regulation D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(y)
Neither
the Company nor any of its subsidiaries is required to be
registered, licensed or qualified pursuant to the Investment
Advisers Act of 1940, as amended, and the rules and regulations
promulgated thereunder.
(z)
Each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
(“ ERISA
”), that is
maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company has
been maintained in all material respects in compliance with its
terms and the requirements of any applicable statutes, orders,
rules and regulations, including ERISA and the Internal Revenue
Code of 1986, as amended (the “ Code
”). No
prohibited transaction, within the meaning of Section 406 of
ERISA or Section 4975 of the Code, has occurred with respect
to any such plan excluding transactions effected pursuant to a
statutory or administrative exemption and transactions with respect
to which no material liability to the Company has occurred or could
reasonably be expected to occur, either individually or in the
aggregate; and for each such plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA,
no “accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not
waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial
assumptions.
(aa)
The
historical consolidated financial statements (including the related
notes) set forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus comply in all material respects with
the requirements of the Securities Act and present fairly in all
material respects the consolidated financial condition, the
consolidated results of operations and the consolidated changes in
cash flows of the entities purported to be shown thereby in
conformity with generally accepted accounting principles; and the
summary and selected historical financial data set forth in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus present fairly in all material respects the information
shown therein and have been compiled on a basis consistent in all
material respects with that of the audited consolidated financial
statements set forth in the Registration Statement, the Time of
Sale Prospectus and the
Prospectus
or the unaudited condensed consolidated financial statements, as
the case may be.
(bb)
Deloitte
& Touche LLP, whose reports are filed with the Commission as a
part of the Registration Statement, is and, during the periods
covered by their reports, was an independent registered public
accounting firm as required by the Securities Act and the published
rules and regulations thereunder adopted by the Commission and the
Public Company Accounting Oversight Board (United
States).
(cc)
The
statistical and market and industry-related data included in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, other than the data furnished to the Company by the
Underwriters specifically for use therein, are based on or derived
from sources that the Company reasonably believes to be reliable
and accurate in all material respects.
(dd)
Neither
the Company nor any of its subsidiaries is (i) in violation of its
certificate of incorporation or by-laws or (ii) in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, credit
agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its property or assets
is subject, except for any default described in clause (ii) which
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(ee)
The
Company and each of its subsidiaries (to the extent not included in
the consolidated tax returns of Morgan Stanley in the ordinary
course of business) have filed all federal, state, local and
foreign tax returns required to be filed through the date of this
Agreement or have requested extensions thereof (except for cases in
which the failure to file would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole) and have
paid all taxes required to be paid thereon, and, except as
currently being contested in good faith and for which reserves
required by generally accepted accounting principles have been
created in the financial statements of the Company, no tax
deficiency has been determined adversely to the Company or any of
its subsidiaries which has had (nor does the Company nor any of its
subsidiaries have any notice or knowledge of any tax deficiency
which could reasonably be expected to be determined adversely to
the Company or its subsidiaries and which could reasonably be
expected to have) a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(ff)
The
Company and its subsidiaries have not, nor, to the knowledge of the
Company, has any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or its
subsidiaries, (A) taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “ FCPA ”) or (B)
used any of the funds of the Company or its subsidiaries with an
unlawful purpose or in an unlawful manner for any contribution,
gift, entertainment or other expense relating to political activity
or as a means to permit the operation of the Company or any of its
subsidiaries or to obtain any concession in contravention of
any
applicable
law, made any direct or indirect payment to any foreign or domestic
government official (or “ Foreign Official
”, as such term is defined in the FCPA) or employee in
contravention of any applicable law from any of the funds of the
Company or its subsidiaries, or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment in
contravention of any applicable law and (C) the Company, and to the
knowledge of the Company, its affiliates, have conducted their
businesses in compliance with the FCPA and operate under a Morgan
Stanley program designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
(gg)
Neither
the Company, nor any of its subsidiaries, or to the knowledge of
the Company, any director, officer, agent, employee or controlled
affiliate of the Company or its subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury (“
OFAC
”).
(hh)
The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the money laundering
statutes of all jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “ Money Laundering Laws
”) and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
2.
Representations and Warranties of the Selling Shareholders
.
(a)
Each
Selling Shareholder represents and warrants to and agrees with each
of the Underwriters that:
(i)
This
Agreement has been duly authorized, executed and delivered by or on
behalf of such Selling Shareholder.
(ii)
The
execution and delivery by such Selling Shareholder of, and the
performance by such 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 such Selling
Shareholder (if such Selling Shareholder is a corporation), or any
agreement or other instrument binding upon such Selling Shareholder
or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over such Selling Shareholder, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by such 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.
(iii)
Such
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 such 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 such Selling Shareholder or a security entitlement in
respect of such Shares.
(iv)
Such
Selling Shareholder is not prompted by any information concerning
the Company or its subsidiaries which is not set forth in the Time
of Sale Prospectus to sell its Shares pursuant to this
Agreement.
(v)
(1)
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, (2) 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, (3) 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 (4) 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(a)(v) are limited to statements or omissions made in reliance
upon information relating to such Selling Shareholder furnished to
the Company in writing by such Selling Shareholder expressly for
use in the Registration Statement, the Time of Sale Prospectus, the
Prospectus or any amendments or supplements thereto.
(b)
Morgan Stanley also
represents and warrants to and agrees with each of the
Underwriters that it has no reason to believe that the
representations and warranties of the Company contained in
Section 1 are not true and correct.
3.
Agreements to Sell and Purchase . Each Selling Shareholder,
severally and not jointly, 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 such Selling Shareholder at $27.84 a share (the
“ Purchase
Price ”) the number of Firm Shares (subject to such
adjustments to
elim
