Exhibit 1.1
Janus Capital Group Inc.
5.875% Senior Notes Due
2011
Underwriting Agreement
New York, New York
September 13, 2006
To the Representatives named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Janus Capital Group Inc., a
corporation organized under the laws of Delaware (the
“Company”), proposes to sell to the several
underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its securities identified in Schedule I
hereto (the “Securities”), to be issued under an
indenture (the “Indenture”) dated as of November 6,
2001, between the Company and JP Morgan Chase Bank, as trustee (the
“Trustee”). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and
the terms Representatives and Underwriters shall mean either the
singular or plural as the context requires. Any reference
herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 20 hereof.
1.
Representations and Warranties . The Company
represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1.
(a)
The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related Base
Prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any
amendments thereto filed prior to the Execution Time, has become
effective. The Company may have filed with the Commission, as part
of an amendment to the Registration Statement or pursuant to Rule
424(b), one or more preliminary prospectus supplements relating to
the Securities, each of which has
previously been furnished to
you. The Company will file with the Commission a final
prospectus supplement relating to the Securities in accordance with
Rule 424(b). As filed, such final prospectus supplement shall
contain all the information required by the Act and the rules
thereunder, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x).
(b)
On each Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the
Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on each Effective Date and at the Execution Time, the
Registration Statement did not 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 in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date, the Indenture did or will comply in all material
respects with the applicable requirements of the Trust Indenture
Act and the rules thereunder; and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided , however , that the Company
makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8
hereof.
(c)
(i) The Disclosure Package and (ii) each electronic road show, when
taken together as a whole with the Disclosure Package, does not
contain 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. The preceding sentence does not apply
to statements in or omissions from the Disclosure Package based
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(d)
(i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)) of
the Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(e)
Each Issuer Free Writing Prospectus and the final term sheet
prepared and filed pursuant to Section 5(b) hereto does not include
any information that conflicts with the information contained in
the Registration Statement, including any document incorporated
therein by reference and any prospectus supplement deemed to be a
part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(f)
Each of the Company and its significant subsidiaries, as defined
pursuant to §210.1-02(w) of Regulation S-X (17 CFR
§210.1-02(w) under the Securities Act) (each such significant
subsidiary, a “ Subsidiary ” and, collectively,
the “ Subsidiaries ”) has been duly incorporated
or organized and is validly existing in good standing under the
laws of the jurisdiction in which it is chartered or organized with
full power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in
the Disclosure Package and the Prospectus, and is duly qualified to
do business as a foreign corporation (or other entity as
applicable) and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the
failure to be so qualified would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business except as set forth in or contemplated
in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(g)
All the outstanding shares of capital stock of each Subsidiary have
been duly authorized and validly issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Disclosure
Package and the Prospectus, all outstanding shares of capital stock
of each Subsidiary are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(h)
This Agreement has been duly authorized, executed and delivered by
the Company.
(i)
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Disclosure
Package and the Prospectus, will not
be an “investment company” as defined in the Investment
Company Act of 1940, as amended.
(j)
No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been
obtained under the Act and the Trust Indenture Act and such as may
be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated herein and in the
Disclosure Package and the Prospectus.
(k)
Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, (i) the charter or by-laws or
similar organizational documents of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a party or bound or
to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or any of its subsidiaries or any of its or their properties,
except, in the case of clause (ii) and (iii) above, for such
conflicts, breaches, violations, liens, charges or encumbrances as
would not, individually or in the aggregate, reasonably be expected
to have a material adverse effect on the issuance or sale of the
Securities or on the performance of this Agreement by the Company
or the consummation by the Company of any of the transactions
contemplated hereby or on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
(l)
The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the
Preliminary Prospectus, the Prospectus and the Registration
Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of the Act and have been
prepared in conformity with U.S. generally accepted accounting
principles (“GAAP”) applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the
caption “Prospectus Supplement Summary—Summary
Consolidated Historical Financial Data” in the Preliminary
Prospectus, the Prospectus and Registration Statement fairly
present, on the basis stated in the Preliminary Prospectus, the
Prospectus and the Registration Statement, the information included
therein.
(m)
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 or its or their property is
pending or, to the best knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse
effect on the
performance of this Agreement or the
consummation of any of the transactions contemplated hereby or
(ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(n)
Each of the Company and each of its subsidiaries owns or leases all
such properties as are necessary to the conduct of its operations
as presently conducted.
(o)
Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws or similar
organizational documents, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property
is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary
or any of its properties, as applicable, except for such conflicts,
breaches or violations, in the cases of clauses (ii) and (iii),
that would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business.
(p)
Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Disclosure
Package and the Prospectus, are independent public accountants with
respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder.
(q)
The Company has filed all tax returns that are required to be filed
or has requested extensions thereof (except in any case in which
the failure so to file would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto)) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in
good faith or as would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or
contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement
thereto).
(r)
No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the
Company, is threatened or imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any
of its or its subsidiaries’ principal suppliers, contractors
or customers, in each case except as could not reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement
thereto).
(s)
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; all policies of insurance and fidelity
or surety bonds insuring the Company or any of its subsidiaries or
their respective businesses, assets, employees, officers and
directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by
the Company or any of its subsidiaries under any such policy or
instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause, except for any
such denial of liability or such defense that, individually or in
the aggregate, would not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business; neither the
Company nor any such subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any
such subsidiary 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 condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement
thereto).
(t)
No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock,
from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(u)
The Company and its Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by all
applicable authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary 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 condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(v)
The Company and each of its consolidated 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 GAAP
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. The Company and its subsidiaries’ internal
controls over financial reporting are effective and the Company and
its subsidiaries are not aware of any material weakness in their
internal controls over financial reporting.
(w)
The Company and its subsidiaries maintain “disclosure
controls and procedures” (as such term is defined in Rule
13a-15(e) under the Exchange Act); such disclosure controls and
procedures are effective in all material respects in providing
reasonable assurance that information required to be disclosed by
the Company in the reports that the Company files or submits under
the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the rules and forms of the
Commission, including, without limitation, controls and procedures
designed to ensure that information required to be disclosed by the
Company, in the reports that it files or submits under the Exchange
Act is accumulated and communicated to the Company’s
management, including its principal executive officer or officers
and its principal financial officer or officers, or persons
performing similar functions, as appropriate to allow timely
decisions regarding required disclosure.
(x)
The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(y)
There is and has been no material failure on the part of the
Company and, to the Company’s knowledge, any of the
Company’s directors or officers, in their capacities as such,
to comply with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402 relating
to loans and Sections 302 and 906 relating to
certifications.
(z)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or
has 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”), including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA; and the Company, its subsidiaries and,
to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith.
(aa)
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 and the money laundering
statutes and 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 best knowledge of the Company, threatened.
(bb)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently
subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(cc)
The Company is not required to be registered, licensed or qualified
as an investment adviser or a broker-dealer or as a commodity
trading advisor, a commodity pool operator or a futures commission
merchant or any or all of the foregoing, as applicable; each of the
Company’s subsidiaries that is required to be registered,
licensed or qualified as an investment adviser or a broker-dealer
or as a commodity trading advisor, a commodity pool operator or a
futures commission merchant or any or all of the foregoing, as
applicable, is so registered, licensed or qualified in each
jurisdiction where the conduct of its business requires such
registration, license or qualification (and such registration,
license or qualification is in full force and effect), and is in
compliance with all applicable laws requiring any such
registration, licensing or qualification, except for any failures
to be so registered, licensed or qualified or to be in such
compliance that, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or
properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(dd)
The Company is not a party to any investment advisory agreement or
distribution agreement; each of the investment advisory agreements
and distribution agreements to which any of the Company’s
subsidiaries is a party is a valid and legally binding obligation
of such subsidiary and complies with the applicable provisions of
the Investment Advisers Act, except for any failures to be so in
compliance that, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business; and none of the Company’s subsidiaries is
in breach or violation of or in default under any such agreement,
which breach, violation, default or invalidity, individually or in
the aggregate, would reasonably be expected to have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(ee)
The Company does not sponsor any funds; each fund sponsored by any
of the Company’s subsidiaries (a “ Fund ”
or the “ Funds ”) and which is required to be
registered with the Commission as an investment company under the
Investment Company Act is duly registered with the Commission as an
investment company under the Investment Company Act, except for any
failures to be so registered that, individually or in the
aggregate, would not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(ff)
With respect to the stock options (the “Stock Options”)
granted pursuant to the stock-based compensation plans of the
Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the Code
so qualifies, (ii) each grant of a Stock Option was duly authorized
no later than the date on which the grant of such Stock Option was
by its terms to be effective (the “Grant Date”) by all
necessary corporate action, including, as applicable, approval by
the board of directors of the Company (or a duly constituted and
authorized committee thereof) and any required stockholder approval
by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (iii) each such grant was made in
accordance with the terms of the Company Stock Plans, the Exchange
Act and all other applicable laws and regulatory rules or
requirements, including the rules of The Nasdaq Global Select
Market and any other exchange on which Company securities are
traded, (iv) the per share exercise price of each Stock Option was
equal to the fair market value of a share of Common Stock on the
applicable Grant Date and (v) each such grant was properly
accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the
Company’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws. The Company has
not knowingly granted, and there is no and has been no policy or
practice
of the Company of granting, Stock
Options prior to, or otherwise coordinate the grant of Stock
Options with, the release or other public announcement of material
information regarding the Company or its subsidiaries or their
results of operations or prospects.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
2.
Purchase and Sale . Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set
forth opposite such Underwriter’s name in Schedule II
hereto.
3.
Delivery and Payment . Delivery of and payment for the
Securities shall be made on the date and at the time specified in
Schedule I hereto or at such time on such later date not more
than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities shall
be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise
instruct.
4.
Offering by Underwriters . It is understood that the
several Underwriters propose to offer the Securities for sale to
the public as set forth in the Final Prospectus.
5.
Agreements . The Company agrees with the several
Underwriters that:
(a)
Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus or any Preliminary
Prospectus) to the Base Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The
Company will cause the Final Prospectus, properly completed, and
an
