Exhibit 10.2
4,500,000 Shares
MASTEC, INC.
Common Stock, Par Value $0.10 Per
Share
UNDERWRITING
AGREEMENT
June 1, 2009
June 1, 2009
M ORGAN S TANLEY & C O .
I NCORPORATED
As Representative of
the Underwriters
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
The several Selling Stockholders
named in Schedule I hereto (the “ Selling Stockholders
”) propose to sell to the several Underwriters named in
Schedule I hereto (the “ Underwriters ”) an
aggregate of 4,500,000 shares of Common Stock, par value $0.10 per
share (the “ Firm Shares ”) of MasTec, Inc., a
Florida corporation (the “ Company ”). The
Selling Stockholders also propose to sell to the several
Underwriters not more than an aggregate of additional 675,000
shares of Common Stock, par value $0.10 per share (the “
Additional Shares ”) of the Company if and to the
extent that you shall have determined to exercise the right to
purchase such shares of common stock granted to the Underwriters in
Section 2 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “
Shares .” The shares of Common Stock, par value $0.10
per share, of the Company outstanding are hereinafter referred to
as the “ Common Stock .” Morgan
Stanley & Co. Incorporated has agreed to act as
Representative of the Underwriters (the “
Representative ”) in connection with the offering and
sale of the Shares.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a shelf registration statement, including a prospectus,
(the file number of which is 333-158502) on Form S-3, relating to
securities (the “ Shelf Securities ”) including
the Shares, to be issued from time to time by the Company. The
registration statement, at any given time, including the amendments
thereto to such time, the exhibits and any schedules thereto at
such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act of 1933, as
amended (the “ Securities Act ”), at such time
and the documents otherwise deemed to be a part thereof or included
therein by regulations promulgated under the Securities Act, as
amended to the date of this Agreement, is hereinafter referred to
as the “ Registration Statement ”; and the
related prospectus covering the Shelf Securities dated
April 8, 2009 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 “
Basic Prospectus. ” The Basic Prospectus, as
supplemented by the prospectus supplement specifically relating to
the Shares 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, ” and the term “ preliminary
prospectus ” means any preliminary form of the
Prospectus. 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 II 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,” “Basic
Prospectus,” “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 Basic
Prospectus, the Time of Sale Prospectus, any preliminary 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 incorporated by reference
therein. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus
or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system
(EDGAR) and/or Interactive Data Electronic Applications (IDEA)
system or any successor system or database.
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1.
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Representations and Warranties
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(A) The Company, as of the date
hereof and as of the First Closing Date (as defined in
Section 4), and as of the Option Closing Date (as defined in
Section 2), if any, 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) As of the date the Registration
Statement was filed, the Company was a well-known seasoned issuer
(as defined in Rule 405 of the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement
and the Company has not received notice that the Commission objects
to the use of the Registration Statement as an automatic shelf
registration statement.
(c) (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 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 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, (iv) 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 4), 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, (v) each
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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 (vi) 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.
(d) The documents incorporated or
deemed to be incorporated by reference in the Time of Sale
Prospectus or the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (the “
Exchange Act Regulations ”), and, when read together
with the other information in the Time of Sale Prospectus or the
Prospectus at its date and at the Closing Date, did not and will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(e) 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 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 II 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. Any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, as
of its issue date and at all subsequent times through the
completion of the public offer and sale of Shares or until any
earlier date that the Company notified or notifies the
Representative as required in Section 6(e) and 6(f), did not,
does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus, including any document incorporated by reference
therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified.
(f) 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.
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(g) Each “significant
subsidiary” as such term is defined in Item 1-02 of
Regulation S-X promulgated by the Commission (each a “
Significant Subsidiary ”) of the Company is listed on
Schedule III hereto. Each Significant Subsidiary of the Company has
been duly incorporated or organized, is validly existing as a
corporation or limited liability company in good standing under the
laws of the respective jurisdiction of incorporation or
organization, has the corporate or limited liability power and
authority to own its respective property and to conduct its
respective businesses 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 respective
businesses or 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, except as set forth in the Registration
Statement.
(h) This Agreement has been duly
authorized, executed and delivered by the Company.
(i) 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.
(j) The shares of Common Stock
outstanding have been duly authorized and are validly issued, fully
paid and non-assessable.
(k) The Shares have been duly
authorized and are validly issued, fully paid and
non-assessable.
(l) 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 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.
(m) 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.
(n) 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
other than proceedings accurately described
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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.
(o) 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.
(p) 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.
(q) Except as disclosed in the
Registration Statement, 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.
(r) Except as disclosed in the
Registration Statement, 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.
(s) Except as disclosed in the
Registration Statement, 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.
(t) The pro forma consolidated
financial statements of the Company and its subsidiaries and the
related notes thereto included in the Preliminary Prospectus, the
Prospectus and the Registration Statement or incorporated by
reference in the Preliminary Prospectus, the Prospectus and 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 basis
described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
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(u) Neither the Company nor any of
its subsidiaries or affiliates, nor any director, officer, or
employee, nor, to the Company’s knowledge, any agent or
representative of the Company or of any of its subsidiaries or
affiliates, has taken or will take any action in furtherance of an
offer, payment, promise to pay, or authorization or approval of the
payment or giving of money, property, gifts or anything else of
value, directly or indirectly, to any “government
official” (including any officer or employee of a government
or government-owned or controlled entity or of a public
international organization, or any person acting in an official
capacity for or on behalf of any of the foregoing, or any political
party or party official or candidate for political office) to
influence official action or secure an improper advantage; and the
Company and its subsidiaries and affiliates have conducted their
businesses in compliance with applicable anti-corruption laws and
have instituted and maintain and will continue to maintain policies
and procedures designed to promote and achieve compliance with such
laws and with the representation and warranty contained
herein.
(v) The operations of the Company
and its subsidiaries are and have been conducted at all times in
material compliance with all applicable financial recordkeeping and
reporting requirements, including those of the Bank Secrecy Act, as
amended by Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and the applicable
anti-money laundering statutes of jurisdictions where the Company
and its subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “ Anti-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 Anti-Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened.
(w) (i) The Company represents that
neither the Company nor any of its subsidiaries (collectively, the
“ Entity ”) or any director, officer, employee,
agent, affiliate or representative of the Entity, is an individual
or entity (“ Person ”) that is, or is owned or
controlled by a Person that is:
(A) the subject of any sanctions
administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control (“ OFAC ”), the
United Nations Security Council (“ UNSC ”) or
other sanctions authority (collectively, “ Sanctions
”), nor
(B) located, organized or resident
in a country or territory that is the subject of Sanctions
(including, without limitation, Burma/Myanmar, Cuba, Iran, North
Korea, Sudan and Syria).
(ii) The Company represents and
covenants that for the past 5 years, the Entity has not knowingly
engaged in, is not now knowingly engaged in, and will not engage
in, any dealings or transactions with any Person, or in any country
or territory, that at the time of the dealing or transaction is or
was the subject of Sanctions.
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(x) Subsequent to the respective
dates as of which information is given in each of 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 each of the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, respectively.
(y) 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 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.
(z) The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, all material
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks 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.
(aa) 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.
(bb) 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.
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(cc) 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, 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.
(dd) 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.
(ee) 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.
(B) Each of the Selling
Stockholders, severally, as of the date hereof and as of the First
Closing Date (as defined in Section 4), and as of the Option
Closing Date (as defined in Section 2), if any, represents and
warrants to and agrees with each of the Underwriters
that:
(a) All consents, approvals,
authorizations and orders necessary for the execution and delivery
by such Selling Stockholder of this Agreement and for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained; and such Selling Stockholder has
full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder.
(b) The sale of the Shares to be
sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement 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, any statute, indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any
violation
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of the provisions of any Organizational
Documents (as defined below) of such Selling Stockholder or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder; “
Organizational Documents ” means the trust agreement
and all other governing documents which grant or limit the power of
a trust or the power of a trustee of a trust;
(c) Such Selling Stockholder has,
and immediately prior to the First Closing Date and, if applicable,
Option Closing Date (as defined in Section 2) such Selling
Stockholder will have, good and valid title to the Shares to be
sold by such Selling Stockholder hereunder, free and clear of all
liens, encumbrances, equities or claims; and, upon delivery of such
Shares and payment therefor pursuant hereto, good and valid title
to such Shares, free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters.
(d) During the period beginning from
the date hereof and continuing to and including the date 90 days
after the date of the Prospectus, not to offer, sell contract to
sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right
to receive, Stock or any such substantially similar securities
(other than (i) pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this
Agreement, or (ii) pursuant to the call, redemption or
repurchase by the Company of its 8% Subordinated Convertible Notes
due 2013), without your prior written consent. Notwithstanding the
foregoing, if (i) during the last 17 days of the 90-day
restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs,
or (ii) prior to the expiration of the 90-day restricted
period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 90-day
period, the restrictions imposed in this clause shall continue to
apply until the expiration of the 18-day period beginning on the
date of the issuance of the earnings release or the occurrence of
the material news or material event.
(e) Such Selling Stockholder has not
taken and will not take, directly or indirectly, any action which
is designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Shares.
(f) To the extent that any
statements or omissions made in the Time of Sale Prospectus, the
Prospectus and the Registration Statement or any amendment or
supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling
Stockholder expressly for use therein, such Time of Sale Prospectus
and the Registration Statement did, and the Prospectus and any
further amendments or supplements to the Registration Statement and
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder and will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading.
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(g) In order to document the
Underwriters’ compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the Closing Date a
properly completed and executed United States Treasury Department
Form W 9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(h) Such Selling Stockholder is not
prompted to sell Shares by any information concerning the Company
which is not set forth in the Time of Sale Prospectus.
2. Agreements to Sell and
Purchase . Each Selling Stockholder hereby agrees, severally
and not jointly, to sell the respective number of Firm Shares set
forth in Schedule I hereto opposite its name 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 Stockholders the respective number of
Firm Shares set forth in Schedule I hereto opposite such
Underwriter’s name at $11.76 a share (the “ Purchase
Price ”).
On the basis of the representations
and warranties contained in this Agreement, and subject to its
terms and conditions, each Selling Stockholder agrees, severally
and not jointly, to sell up to the respective number of Additional
Shares set forth in Schedule I hereto opposite its name to the
Underwriters, and the Underwriters shall have the right to
purchase, severally and not jointly, up to an aggregate of 675,000
Additional Shares at the Purchase Price. You may exercise this
right on behalf of the Underwriters in whole or from time to time
in part by giving written notice not later than 30 days after the
date of this Agreement. Any exercise notice shall specify the
number of Additional Shares to be purchased by the Underwriters and
the date on which such shares are to be purchased. Each purchase
date must be at least one business day after the written notice is
given and may not be earlier than the First Closing Date nor later
than ten business days after the date of such notice. On each day,
if any, that Additional Shares are to be purchased (an “
Option Closing Date ”), which may be the First Closing
Date (the First Closing Date and each Option Closing Date, if any,
being sometimes referred to as a “ Closing Date
”), each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine)
that bears the same proportion to the total number of Additional
Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule I hereto opposite the name of
such Underwriter bears to the total number of Firm
Shares.
3. Terms of Public Offering .
The Selling Stockholders and the Company 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 price of the Shares initially offered to
the public is referred to herein as the “ Public Offering
Price ”.
4. Payment and Delivery .
Payment for the Firm Shares shall be made to each Selling
Stockholder in Federal or other funds immediately available in New
York City against delivery of such Firm Shares for the respective
accounts of the several Underwriters at 10:00 a.m., New York City
time, on June 5, 2009, or at such other time on the same or
such other date, not later than June 12, 2009, as shall be
designated in writing by you. The time and date of such payment and
delivery are herein referred to as the “ First Closing
Date .”
10
Payment for any Additional Shares
shall be made to each Selling Stockholder in Federal or other funds
immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 2
or at such other time on the same or on such other date, in any
event not later than July 3, 2009, as shall be designated in
writing by you.
The Firm Shares and Additional
Shares shall be registered in such names and in s
