Exhibit 10.2
National Financial Partners
Corp.
$200,000,000 0.75%Convertible
Senior Notes due 2012
Underwriting
Agreement
January 17, 2007
Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
UBS Securities LLC
299 Park Avenue
New York, New York 10171
As representatives of the several
underwriters named in Schedule I hereto (the
“Underwriters”),
Ladies and Gentlemen:
National Financial Partners Corp., a
Delaware corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to sell to the
Underwriters, $200,000,000 aggregate principal amount of its
0.75%Convertible Senior Notes due 2012 (the “Notes”),
and with respect to the grant by the Company to the Underwriters of
the option described in Section 2 hereof to purchase all or
any part of an additional $30,000,000 aggregate principal amount of
Notes to cover over-allotments, if any. The aforesaid $200,000,000
principal amount of the Notes to be purchased by the Underwriters
(the “Initial Securities”) and all or any part of the
$30,000,000 aggregate principal amount of Notes subject to the
option described in Section 2 hereof (the “Optional
Securities,” and together with the Initial Securities, the
“Securities”). The Securities will be issued pursuant
to an Indenture, dated as of January 16, 2007, as supplemented
by the First Supplemental Indenture, dated as of January 22,
2007 (collectively, the “Indenture”), between the
Company and Wells Fargo Bank, National Association, as trustee (the
“Trustee”). Securities issued in book-entry form will
be issued to Cede & Co. as nominee of The Depository Trust
Company (“DTC”) pursuant to a letter agreement, to be
dated as of the Time of Delivery (as defined herein) (the
“DTC Agreement”), among the Company, the Trustee and
DTC. The Securities are convertible into shares (the
“Underlying Common Stock”) of the Company’s
common stock, par value $0.10 per share (the “Stock”),
in accordance with the terms of the Securities and the
Indenture.
It is understood and agreed that
Goldman, Sachs & Co. and UBS Securities LLC (the
“Representatives”) are joint book-running managers for
the offering of the Securities contemplated hereby and any
determinations or other actions to be made under this Agreement by
the Representatives shall require the concurrence of each of the
Representatives.
The Company hereby confirms its
engagement of Merrill Lynch, Pierce, Fenner & Smith
Incorporated as, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated hereby confirms its agreement with the Company to
render services as, a “qualified independent
underwriter” within the meaning of Rule 2720 of the Conduct
Rules of the National Association of Securities
Dealers, Inc. (the “NASD”) with
respect to the offering and sale of the Securities. Merrill Lynch,
Pierce, Fenner & Smith Incorporated, solely in its
capacity as qualified independent underwriter and not otherwise, is
referred to herein as the “Independent
Underwriter.”
1. (a) The Company represents and
warrants to, and agrees with, the Underwriters that:
(i) An automatic shelf registration
statement on Form S-3 (File No. 333-134915), including the
preliminary prospectus or prospectuses relating to the registration
of certain securities described therein, including the Securities
(such registration statement, including the amendments thereto that
relate to the Securities, the exhibits and any schedules thereto,
if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act of
1933, as amended (the “Act”), at the time it became
effective and including the Rule 430B Information (as defined
below) is herein called the “Registration Statement”;
no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued
and no proceeding for that purpose has been initiated or threatened
by the Commission (the Base Prospectus (as defined herein), as
amended and supplemented by any preliminary prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act is hereinafter called a
“Preliminary Prospectus”);
(ii) The Company will file with the
Commission pursuant to Rule 430B (“Rule 430B”) and
paragraph (b) of Rule 424 (“Rule 424(b)”) under
the Act a supplement or supplements to the form of prospectus
included in the Registration Statement relating to the Securities
and the plan of distribution for the Securities (the information
included in such prospectus that was omitted from such registration
statement at the time it became effective but that is deemed to be
part of and included in such Registration Statement pursuant to
Rule 430B is referred to as “Rule 430B Information”;
the prospectus in the form in which it currently appears in the
Registration Statement is hereinafter called the “Base
Prospectus,” and such supplemented form of prospectus
relating to the Securities, in the form in which it shall first be
filed with the Commission pursuant to Rule 424(b) under the Act
(including the Base Prospectus as so supplemented), is hereinafter
called the “Prospectus”; “free writing
prospectus” means a free writing prospectus, if any, as
defined under Rule 405 under the Act that constitutes an offer to
sell or a solicitation of an offer to buy the Securities;
“Issuer Free Writing Prospectus” means any issuer free
writing prospectus, as defined in Rule 433 under the Act; the
“Applicable Time of Sale” is 7:00 a.m. New York time on
the next business day following the date of this Agreement; and
“Time of Sale Prospectus” means (i) the
Preliminary Prospectus, as amended or supplemented immediately
prior to the Applicable Time of Sale and (ii) the Issuer Free
Writing Prospectuses, if any, each identified in Schedule IV(a)
hereto all considered together; and any reference herein to the
Registration Statement, the Base Prospectus, the Preliminary
Prospectus, the Time of Sale Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated
by
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reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)
or otherwise deemed under the Act to be a part of or included
therein; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Preliminary Prospectus, the
Prospectus, the Base Prospectus, the Time of Sale Prospectus or any
Issuer Free Writing Prospectus shall be deemed to refer to and
include any document filed under the Exchange Act after the date of
this Agreement, or the issue date of the Base Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein
by reference or otherwise deemed under the Act to be a part of or
included therein);
(iii) No order preventing or
suspending the use of any Preliminary Prospectus and the Time of
Sale Prospectus, the Prospectus or any Issuer Free Writing
Prospectus has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission;
(iv) The Registration Statement and
any Preliminary Prospectus conform, and the Prospectus and any
further amendments or supplements to the Registration Statement and
the Prospectus will conform, in all material respects to the
applicable requirements of the Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided , however
, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use
therein;
(v) The Time of Sale Prospectus did
not, at the Applicable Time of Sale, contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided , however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(vi) Each Issuer Free Writing
Prospectus listed on Schedule IV(b) hereto does not conflict with
the information contained in the Registration Statement, the Time
of Sale Prospectus or the Prospectus. Each such Issuer Free Writing
Prospectus, when considered together with the Time of Sale
Prospectus as of the Applicable Time of Sale, did 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 light of
the circumstances under which they were made, not misleading. The
foregoing sentence does not apply to statements in or omissions
from the Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by an
Underwriter through the Representatives specifically for use
therein;
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(vii)(A) (i) At the time of
filing the Registration Statement and (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) 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) under the Act) of the
Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;
(viii) Neither the Company nor any
of its subsidiaries has sustained since the date of the latest
audited financial statements included in the Registration
Statement, Time of Sale Prospectus and the Prospectus any material
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Registration
Statement, Time of Sale Prospectus and the Prospectus; and, since
the respective dates as of which information is given in the Time
of Sale Prospectus and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any
of its subsidiaries (except for the vesting or exercise of
restricted stock units or options pursuant to equity incentive,
compensation or benefit plans in existence on the date of this
Agreement and described in the Time of Sale Prospectus, the
repurchase of shares of common stock from Apollo Investment Fund
IV, L.P. and Apollo Overseas Partners IV, L.P. by the Company as
described in the Time of Sale Prospectus, and the Company’s
offering of convertible senior notes and use of proceeds from such
offering to pay a portion of its indebtedness outstanding under its
credit facility as described in the Time of Sale Prospectus) or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, consolidated financial position, stockholders’
equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Time of Sale Prospectus and the
Prospectus;
(ix) The Company and the
subsidiaries of the Company set forth on Schedule III hereto (each
a “Subsidiary” and, collectively, the
“Subsidiaries”) have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Time of Sale Prospectus or such as would not have a material
adverse effect on the current or future general affairs,
management, consolidated financial position, stockholders’
equity or results of operations of the Company and its
subsidiaries, taken as a whole (a “Material Adverse
Effect”); and any real property and
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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;
(x) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Time of Sale Prospectus and the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing (to the
extent such concept exists) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each Subsidiary has been
duly incorporated or organized, as the case may be, and is validly
existing as a corporation, partnership or limited liability
company, as the case may be, in good standing (to the extent such
concept exists) under the laws of its jurisdiction of incorporation
or organization, as the case may be;
(xi) The Company has full right,
power, and authority to execute and deliver this Agreement and the
Indenture (collectively, the “Transaction Documents”),
and to perform its obligations thereunder; and all actions required
to be taken for the due and proper authorization, execution and
delivery by it of this Agreement and the Supplemental Indenture and
the consummation by it of the transactions contemplated thereunder
have been, or will be prior to the First Time of Delivery, duly and
validly taken; the Base Indenture has been duly executed and
delivered by the Company;
(xii) The Company has an authorized
capitalization as set forth in the Time of Sale Prospectus and the
Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description of the Stock
contained in the Time of Sale Prospectus and the Prospectus; and
all of the issued shares of capital stock of each Subsidiary of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors’ qualifying
shares) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims (for those
related to the Credit Agreement, dated as of August 22, 2006,
as amended as of January 16, 2007, among the Company, as Borrower,
the several lenders from time to time parties thereto, and Bank of
America, N.A., as Administrative Agent);
(xiii) The Indenture has been duly
authorized by the Company and duly qualified under the Trust
Indenture Act of 1939, as amended and, when duly executed and
delivered by the Company and the Trustee, will constitute a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to
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fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding of equity or
law);
(xiv) The Securities have been duly
authorized and, at the Time of Delivery, will have been duly
executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and the
Securities and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding inequity or at law), and
will be in the form contemplated by, and entitled to the benefits
of, the Indenture;
(xv) The Underlying Common Stock
conforms to the description of the Stock contained or incorporated
by reference in the Preliminary Prospectus, the Time of Sale
Prospectus and the Prospectus. Upon issuance and delivery of the
Securities in accordance with this Agreement and the Indenture, the
Securities will be convertible at the option of the holder thereof
for shares of Underlying Common Stock in accordance with the terms
of the Securities and the Indenture; the shares of the Underlying
Common Stock have been duly authorized and reserved for issuance
upon such conversion by all necessary corporate action and such
shares, when issued upon conversion, will be validly issued and
will be fully paid and non-assessable, and the issuance of such
shares upon such conversion will not be subject to the preemption
or other similar rights of any security holder of the
Company;
(xvi) The compliance by the Company
with all of the provisions of the Transaction Documents and the
consummation of the transactions therein 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, (i) any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of
the Company or any of its Subsidiaries is subject, (ii) the
provisions of the Certificate of Incorporation or By-laws of the
Company or (iii) any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over the Company or any of its Subsidiaries or any of their
properties except, in the case of clauses (i) and (iii), for
such breaches, violations or defaults that would not result in a
Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the
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consummation by the Company of the
transactions contemplated by the Transaction Documents, except the
registration under the Act of the Securities and the Underlying
Common Stock and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities (including insurance securities) or Blue Sky laws in
connection with the purchase and distribution of the Securities by
the Underwriters;
(xvii) Neither the Company nor any
of its Subsidiaries is in violation of its Certificate of
Incorporation or By-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be
bound;
(xviii) The statements set forth in
the Time of Sale Prospectus and the Prospectus under the caption
“Description of the Notes,” insofar as they purport to
constitute a summary of the terms of the Securities, under the
caption “Description of Convertible Note Hedge and Warrant
Transactions,” insofar as they purport to describe the
provisions of the documents referred to therein and under the
caption “Certain United States Federal Income Tax
Considerations,” and under the caption
“Underwriting,” insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(xix) Other than as set forth in the
Time of Sale Prospectus and the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company or
any of its Subsidiaries is the subject which could be reasonably
expected, individually or in the aggregate, to have a Material
Adverse Effect; and, to the knowledge of the Company, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xx) The Company and its
Subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure to possess
such Governmental Licenses would not have a Material Adverse
Effect; the Company and its Subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, individually or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have
a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental
Licenses;
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(xxi) The Company and its
Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are customary in the businesses in which they are engaged, except
where the failure to be so insured would not have a Material
Adverse Effect, and neither the Company nor any of its Subsidiaries
has any reason to believe that any of them will not be able to
(i) renew its existing insurance coverage as and when such
coverage expires except where the failure to renew would not have a
Material Adverse Effect, or (ii) 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;
(xxii) The Company and its
Subsidiaries own, possess, have other rights to use or can acquire
on reasonable terms, adequate 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,
trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the
business now operated by them, except where the failure to own,
possess or have other rights to use, or be able to acquire, such
Intellectual Property would not have a Material Adverse Effect;
neither the Company nor any of its Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its Subsidiaries therein, which
infringement, conflict, invalidity or inadequacy, individually or
in the aggregate, would be reasonably likely to have a Material
Adverse Effect;
(xxiii) The Company is not and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an
“investment company,” as such term is defined in the
Investment Company Act of 1940, as amended;
(xxiv) Neither the Company nor any
of its affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes;
(xxv) 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 authorization;
(ii) transactions are recorded as necessary to permit
preparation of consolidated financial statements in conformity with
United States generally accepted accounting principles and to
maintain accountability for assets; (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 existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences;
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(xxvi) The Company has established
and maintains disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e) under the Exchange Act; such
disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by
others within those entities and are effective to perform the
functions for which they were established;
(xxvii) There has been no change in
the Company’s internal control over financial reporting since
September 30, 2006 that has materially affected, or is
reasonably likely to materially affect, the Company’s
internal control over financial reporting; and, since
December 31, 2005, the audit committee of the board of
directors of the Company has been advised by the Company of:
(i) all significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report
financial information and (ii) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company’s internal control over
financial reporting;
(xxviii) The consolidated financial
statements, together with related schedules and notes, included in
the Registration Statement, Time of Sale Prospectus and the
Prospectus (and any amendment or supplement thereto) present fairly
in all material respects the financial position, results of
operations and changes in financial position of the Company and its
consolidated subsidiaries at the respective dates or for the
respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with United
States generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and
data of the Company set forth in the Registration Statement, Time
of Sale Prospectus and the Prospectus (and any amendment or
supplement thereto) present fairly, in all material respects, the
information stated therein and have been derived from the books and
records of the Company, and such other financial information and
data have been prepared on a basis consistent with such financial
statements;
(xxix) PricewaterhouseCoopers LLP
(“PWC”), which has certified certain financial
statements of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company
within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Commission and the Public
Company Accounting Oversight Board;
(xxx) Each subsidiary of the Company
which is engaged in the business of acting as a broker-dealer or an
investment advisor (respectively, a “Broker-Dealer
Subsidiary” and an “Investment Advisor
Subsidiary”) is duly licensed or registered as a
broker-dealer or investment advisor, as the case may be, in each
jurisdiction where it is required to be so licensed or registered
to conduct its
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business, except where the failure
to be so licensed or registered would not have a Material Adverse
Effect; each Broker-Dealer Subsidiary and each Investment Advisor
Subsidiary has all other necessary approvals of and from all
applicable regulatory authorities, including any self-regulatory
organization, to conduct its businesses, except where the failure
to have such approvals would not have a Material Adverse Effect;
except as otherwise provided in the Time of Sale Prospectus and the
Prospectus, none of the Broker-Dealer Subsidiaries or Investment
Advisor Subsidiaries has received any notification from any
applicable regulatory authority to the effect that any additional
approvals from such regulatory authority are needed to be obtained
by such subsidiary and have not been obtained, in any case where it
could be reasonably expected that the Broker-Dealer Subsidiary will
be unable to obtain such additional approvals and the failure to
obtain any such additional approvals would require such Subsidiary
to cease or otherwise materially limit the conduct of its business;
and each Broker-Dealer Subsidiary and each Investment Advisor
Subsidiary is in compliance with the requirements of the
broker-dealer and investment advisor laws and regulations of each
jurisdiction that are applicable to such Subsidiary, and has filed
all notices, reports, documents or other information required to be
filed thereunder, with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect;
and
(xxxi) There are no contracts or
documents required to be described or referred to in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus or to be filed as exhibits thereto which have not been
so described and filed as required.
2. Subject to the terms and
conditions herein set forth, (a) the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company the Initial
Securities at a price equal to 97% of the principal amount thereof
and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price
set forth in clause (a) of this Section 2, that portion
of the aggregate principal amount of Optional Securities as to
which such election shall have been exercised.
The Company hereby grants to the
Underwriters the right to purchase at their election up to
$30,000,000 aggregate principal amount of Optional Securities at
the purchase price set forth in the paragraph above. Any such
election to purchase Optional Securities may be exercised only by
written notice from you to the Company, given within a period of 30
calendar days after the date of this Agreement and setting forth
the aggregate principal amount of Optional Securities to be
purchased and the date on which such Optional Securities are to be
delivered, as determined by you but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or,
unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such
notice.
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3. Upon the authorization by you of
the release of the Securities, the several Underwriters propose to
offer the Securities for sale upon the terms and conditions set
forth in the Time of Sale Prospectus and the Prospectus.
4. (a) The time and date of delivery
and payment for the Securities shall be, with respect to the
Initial Securities, 9:30 a.m., New York time, on January 22,
2007, or such other time and date as the Representatives and the
Company may agree upon in writing, and, with respect to the
Optional Securities, 9:30 a.m., New York time, on the date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters’ election to purchase
such Optional Securities, or such other time and date as the
Representatives and the Company may agree upon in writing. Such
time and date for delivery of the Initial Securities is herein
called the “First Time of Delivery,” such time and date
for delivery of the Optional Securities, if not the First Time of
Delivery, is herein called the “Second Time of
Delivery,” and each such time and date for delivery is herein
called a “Time of Delivery.”
(b) The documents to be delivered at
each Time of Delivery by or on behalf of the parties hereto
pursuant to Section 8 hereof, including the cross receipt for
the Securities and any additional documents requested by the
Underwriters pursuant to Section 8(l) hereof will be delivered
at the offices of LeBoeuf, Lamb, Greene & MacRae LLP, 125
W. 55th Street, New York, New York 10019 (the “Closing
Location”). A meeting will be held at the Closing Location at
2:00 p.m., New York City time, on the New York Business Day
preceding such Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the
purposes of this Section 4, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day
