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EX-99.1 - EX-99.1 - AMERIGROUP CORP | y05317exv99w1.htm |
8-K - FORM 8-K - AMERIGROUP CORP | y05317e8vk.htm |
Exhibit 1.1
EXECUTION COPY
AMERIGROUP Corporation
7.5% Senior Notes due 2019
Underwriting Agreement
November 10, 2011
Goldman, Sachs & Co.
200 West Street,
New York, New York 10282-2198
200 West Street,
New York, New York 10282-2198
Ladies and Gentlemen:
AMERIGROUP Corporation, a Delaware corporation (the Company), proposes, subject to the terms
and conditions stated herein, to issue and sell to Goldman, Sachs & Co. (the Underwriter) an
aggregate of $400,000,000 in principal amount of its 7.5% Senior Notes due 2019 (the Securities).
The Securities will be issued pursuant to an indenture (the Base Indenture), dated as of the
date of the Time of Delivery (as defined in Section 4(a) hereof), that will be entered into between
the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), which
will be substantially in the form filed as Exhibit 4.2 to the Registration Statement, as
supplemented by the first supplemental indenture (the First Supplemental Indenture) between the
Company and the Trustee to be dated as of the date of the Time of Delivery. The Base Indenture and
the First Supplemental Indenture are referred to herein collectively as the Indenture.
1. The Company represents and warrants to, and agrees with, the Underwriter that:
(a) An automatic shelf registration statement as defined under Rule 405
under the Securities Act of 1933, as amended (the Act) on Form S-3 (File No. 333-156134)
in respect of the Securities has been filed with the Securities and Exchange Commission (the
Commission) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no stop
order suspending the
effectiveness of such registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission, and no
notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received
by the Company (the base prospectus
filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of
this Agreement, is hereinafter called the Basic Prospectus; any preliminary prospectus
(including 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; the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of
such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the Registration
Statement; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the Pricing
Prospectus; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the Prospectus; any reference herein to the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934,
as amended (the Exchange Act), and incorporated therein, in each case after the date of
the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any issuer free writing prospectus as defined
in Rule 433 under the Act relating to the Securities is hereinafter called an Issuer Free
Writing Prospectus);
(b) No order preventing or suspending the use of any Preliminary Prospectus
or any Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to the Company
by the Underwriter expressly for use therein;
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(c) For the purposes of this Agreement, the Applicable Time is 1:00 p.m.
(Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by the
final term sheet prepared and filed pursuant to Section 5(a) hereof which is included on
Schedule II hereto, taken together (collectively, the Pricing Disclosure Package) as of
the Applicable Time, did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and each Issuer Free Writing
Prospectus listed on Schedule I(a) hereto does not conflict with the information contained
in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer
Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions made in the
Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by the Underwriter for use
therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; any further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder 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; 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 the Underwriter expressly for use
therein; and no such documents were filed with the Commission since the Commissions close
of business on the business day immediately prior to the date of this Agreement and prior to
the execution of this Agreement, except as set forth on Schedule I(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to
each part of the Registration
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Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein (with respect to the Prospectus only, in the light of the
circumstances under which they were made) not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included in the Pricing Prospectus any
material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the
Pricing Prospectus; and, since the respective dates as of which information is given in the
Pricing Prospectus, there has not been any change in the capital stock or long term debt of
the Company or any of its subsidiaries (other than (i) the purchase of an immaterial number
of shares of the Companys common stock made pursuant to the Companys share repurchase
program, (ii) the exercise of an immaterial number of options to purchase shares of common
stock, (iii) the granting of an immaterial number of options to purchase shares of common
stock, (iv) the forfeiture of an immaterial number of options to purchase shares of common
stock and (v) the purchase of an immaterial number of shares of the Companys common stock
made in connection with the exercise of stock options to the extent necessary to pay
withholding taxes) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs, management,
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 Pricing
Prospectus;
(g) The Company and each of its subsidiaries that is a significant
subsidiary (as defined in Rule 1-02(w) of Regulation S-X of the Exchange Act)
(collectively, the Significant 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 Pricing Prospectus or as would not reasonably be expected, individually or
in the aggregate, to have a material adverse effect on the business, current or future
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 buildings held under lease by the Company and each of its Significant
Subsidiaries are held by them under valid, subsisting and enforceable leases, except
where the failure to do so would not reasonably be expected, individually and in the
aggregate, to have a Material Adverse Effect;
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(h) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the Pricing Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require such
qualification, except for such failures to be duly qualified as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect; and each
Significant Subsidiary of the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of incorporation;
(i) The Company has an authorized capitalization as set forth in the Pricing
Prospectus and all of the issued shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; and all of the issued
shares of capital stock of each Significant Subsidiary of the Company have been duly
authorized and validly 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;
(j) This Agreement has been duly authorized, executed and delivered by the
Company;
(k) The Securities have been duly authorized and, when issued and delivered
pursuant to this Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture, under which they are to be issued; the Indenture
has been duly authorized and duly qualified under the Trust Indenture Act of 1939, as
amended (the Trust Indenture Act) and, when executed and delivered by the Company and the
Trustee, will constitute a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors rights and to
general equity principles; and the Securities and the Indenture will conform, in all
material respects, to the descriptions thereof in the Pricing Disclosure Package and the
Prospectus;
(l) Except as described in the Pricing Prospectus, prior to the date hereof, neither
the Company nor, to the Companys knowledge, any of its affiliates (excluding any person or
entity that is an affiliate of the Company solely due to their status as a direct or
indirect stockholder of the Company) has taken any action which is designed to or which has
constituted or which might have
been expected to cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Securities;
(m) The issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture and this
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Agreement and the consummation of
the transactions herein and therein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, 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) result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or (iii) result in any violation of 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 the foregoing clauses (i) and (iii), where such conflicts, breaches,
violations or defaults would not reasonably be expected, individually or in the aggregate,
to have 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 consummation by the Company of the
transactions contemplated by this Agreement or the Indenture except such as have been
obtained under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities by the
Underwriter;
(n) Neither the Company nor any of its Significant Subsidiaries is in violation of its
Certificate of Incorporation or By-laws or in default in the performance or observance of
any material obligation, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except for such defaults as would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(o) Each of the Companys subsidiaries that is required to be organized or licensed as
insurance, health insurance, healthcare, managed care organization, HMO or health care
management company or holding company in respect thereof in its jurisdiction of
incorporation (each, an Insurance or Healthcare Subsidiary) is duly organized and licensed
as such in its respective jurisdiction of incorporation and is duly licensed or authorized
as such in each other jurisdiction where it is required to be so licensed or authorized to
conduct its business in the manner described in the Pricing Prospectus, except where the
failure to be so licensed or authorized would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; each Insurance or Healthcare Subsidiary
has all other approvals, orders, consents, authorizations, licenses, certificates, permits,
registrations and qualifications of
and from all insurance or healthcare related regulatory authorities to conduct its business
(collectively, the Approvals), except as would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect; there is no pending or to the knowledge
of the Company, threatened action, suit, proceeding, investigation or inquiry that would be
expected to lead to the
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revocation, termination or suspension of any such Approval or
otherwise impose any material limitation on the conduct of the business of the Company or
any of its subsidiaries; no insurance or healthcare related regulatory agency or body has
issued any order or decree impairing, restricting or prohibiting the payment of dividends by
any Insurance or Healthcare Subsidiary to its parent; and each of the Company and its
Insurance or Healthcare Subsidiaries is in compliance in all material respects with all
applicable federal, state and local statutes, laws, ordinances, rules, regulations, orders
and similar requirements of any Governmental Authority, including those relating to the
provision or payment of healthcare services, managed care organizations, health maintenance
organizations, health insurance, health care management company or other risk bearing
entity, except where the failure to be in compliance would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect;
(p) Each of the Company and its Insurance or Healthcare Subsidiaries has made all
filings, registrations and declarations (collectively, the Filings) with all insurance
regulatory authorities, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals (each, a Governmental
Authority), necessary to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Pricing Prospectus, except where the
failure to do so would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect;
(q) The statements set forth in the Pricing 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 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;
(r) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, which would reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect; and, to the
Companys knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(s) 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 United States Investment Company Act of 1940, as amended (the
Investment Company Act);
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(t) (i) (A) At the time of filing the Registration Statement, (B) 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), and (C) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a well-known seasoned issuer as
defined in Rule 405 under the Act; and (ii) 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;
(u) The consolidated financial statements of the Company and its subsidiaries included
in the Pricing Prospectus and the Prospectus, together with the related schedules and notes,
present fairly in all material respects the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the results of operations,
stockholders equity and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in conformity with generally
accepted accounting principles (GAAP) applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Pricing Prospectus and the
Prospectus present fairly, in all material respects, in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary financial
information of the Company included in the Pricing Prospectus have been compiled on a basis
consistent with that of the financial statements of the Company included in the Pricing
Prospectus and the Prospectus;
(v) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Companys principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP. The Companys internal control
over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(w) Since the date of the latest audited financial statements included in the Pricing
Prospectus, there has been no change in the Companys internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Companys internal control over financial reporting;
(x) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) of the Exchange Act) that comply with the
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requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Companys
principal executive officer and principal financial officer by others within those entities;
and such disclosure controls and procedures are effective;
(y) KPMG LLP, which has audited certain consolidated financial statements of the
Company and its subsidiaries is an independent registered public accounting firm as required
by the Act and the rules and regulations of the Commission thereunder;
(z) Neither the Company nor any of its subsidiaries, nor, to the Companys knowledge,
any director, officer, agent, employee or affiliate (excluding any person or entity that is
an affiliate of the Company solely due to their status as a direct or indirect stockholder
of the Company), or any of its subsidiaries has violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, as amended (the FCPA), and the rules and
regulations thereunder, related to 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;
(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
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions in which 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 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 Companys
knowledge, threatened;
(bb) Neither the Company nor any of its subsidiaries nor, to the Companys knowledge,
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. 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; and
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(cc) To the extent that the Company or any of its Healthcare Subsidiaries is a covered
entity or business associate as defined under Health Insurance Portability and
Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for
Economic and Clinical Health Act, each of the Company and its Healthcare Subsidiaries (i)
has developed a compliance plan for being in compliance with HIPAA; (ii) has used its best
efforts to implement those provisions of such HIPAA compliance plan in all respects
necessary to ensure that the Company and its Healthcare Subsidiaries are in compliance with
HIPAA, except to the extent that the failure to do so could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) conducts all
electronic transactions governed by HIPAA in accordance with HIPAA, except to the extent
that the failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. To their knowledge, neither the Company, any of
its Healthcare Subsidiaries, nor to their knowledge any of their employees during such
employees employment by the Company or a Healthcare Subsidiary, is the subject of, or a
party to, any civil, criminal or administrative proceeding or investigation by a
Governmental Authority in connection with any actual or potential HIPAA violation (other
than routine surveys or reviews) that could result in any of the foregoing in each case that
could, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue
and sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a purchase
price of 98.95% of the principal amount thereof, plus accrued interest, if any, from November 16,
2011 to the Time of Delivery (as defined below) hereunder, the entire principal amount of the
Securities. At the Companys direction, the Underwriter agrees to allocate $3,200,000 in aggregate
principal amount of the Securities to the persons identified by the Company in writing to the
Underwriter on or before the date of this Agreement at a purchase price equal to 100% of the
principal amount thereof, plus accrued interest, if any, from November 16, 2011 to the Time of
Delivery (as defined below) hereunder.
3. Upon the authorization by you of the release of the Securities, the Underwriter
proposes to offer the Securities for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Securities to be purchased by the Underwriter hereunder will be
represented by one or more definitive global Securities in book-entry form which will be deposited
by or on behalf of the Company with The Depository Trust Company (DTC) or its designated
custodian. The Company will deliver the Securities to the Underwriter against payment by or on
behalf of the Underwriter of the purchase price therefor by wire transfer in Federal (same-day)
funds, by causing DTC to credit the Securities to the
account of the Underwriter at DTC. The Company will cause the certificates representing the
Securities to be made available to the Underwriter for checking at least twenty-four hours prior to
the Time of Delivery (as defined below) at the office of Latham & Watkins LLP, 885 Third Avenue,
Suite 1000, New York, NY 10022-4834 (the Closing
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Location). The time and date of such delivery
and payment shall be 9:30 a.m., New York City time, on November 16, 2011 or such other time and
date as the Underwriter and the Company may agree upon in writing. Such time and date is herein
called the Time of Delivery;
(b) The documents to be delivered at the 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 Underwriter pursuant to Section 8(j) hereof, will be
delivered at such time and date at the Closing Location, and the Securities will be delivered at
DTC or its designated custodian, all at the Time of Delivery. A meeting will be held at the
Closing Location at 5:00 p.m., New York City time, on the New York Business Day next preceding the
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 on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with the Underwriter:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commissions close of business on the second business day following the date of
this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or
the Prospectus prior to the Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof;
to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof;
to prepare a final term sheet, containing solely a description of the Securities, in a form approved by you and to file such
term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material
required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or
sale of the Securities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of
the Securities, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities for offering
or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
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preventing or suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of
such order; and in the event of any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration Statement or filing a new
registration statement, at its own expense, as may be necessary to permit offers and sales of the
Securities by the Underwriter (references herein to the Registration Statement shall include any
such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus which shall be disapproved by you promptly after reasonable notice
therereof;
(c) If by the third anniversary (the Renewal Deadline) of the initial effective date of the
Registration Statement, any of the Securities remain unsold by the Underwriter, the Company will
file, if it has not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Securities, in a form satisfactory to you. If at the Renewal Deadline
the Company is no longer eligible to file an automatic shelf registration statement, the Company
will, if it has not already done so, file a new shelf registration statement relating to the
Securities, in a form satisfactory to you and will use its best efforts to cause such registration
statement to be declared effective within 180 days after the Renewal Deadline. The Company will
take all other action necessary or appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the expired registration statement relating to the
Securities. References herein to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be;
(d) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction or
subject itself to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject;
(e) To furnish the Underwriter with written and electronic copies of the Prospectus in such
quantities as you may from time to time reasonably request, and, if the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus in connection with
the offering or sale of the Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an 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 when such Prospectus (or in
lieu
-12-
thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading,
or, if for any other reason it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request
to file such document and to prepare and furnish without charge to the Underwriter and to any
dealer in securities as many written and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case the Underwriter is required to deliver
a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many written and electronic copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(f) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(g) During the period beginning from the date hereof and continuing to and including the date
60 days after the Time of Delivery, not to offer, sell, contract to sell, pledge, grant any option
to purchase, make any short sale or otherwise transfer or dispose of, except as provided hereunder,
directly or indirectly, or file with the Commission a registration statement under the Act relating
to any securities of the Company that are substantially similar to the Securities, or publicly
disclose the intention to make any offer, sale, pledge, disposition or filing;
(h) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act; and
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption Use of Proceeds.
6.
(a) (i) The Company represents and agrees that, other than the final term sheet prepared
and filed pursuant to Section 5(a) hereof, without the prior consent of the Underwriter, it has not
made and will not make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus;
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(ii) the Underwriter represents and agrees that, without the prior consent of the Company,
other than one or more term sheets relating to the Securities containing customary information
(which, in their final form, will not be inconsistent with the final term sheet) and conveyed to
purchasers of Securities, it has not made and will not make any offer relating to the Securities
that would constitute a free writing prospectus as defined in Rule 405 under the Act (any such
offer (other than any such term sheets), is hereinafter referred to as a Underwriter Supplemental
Disclosure Document); and
(iii) any Issuer Free Writing Prospectus or Underwriter Supplemental Disclosure Document the
use of which has been consented to by the Company and the Underwriter (other than the final term
sheet prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule I(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an 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 then
prevailing, not misleading, the Company will give prompt notice thereof to the Underwriter and, if
requested by the Underwriter, will prepare and furnish without charge to the Underwriter an Issuer
Free Writing Prospectus or other document which will correct such conflict, statement or omission;
provided, however, that this covenant shall not apply to any statements or omissions in an Issuer
Free Writing Prospectus made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use therein.
7. The Company covenants and agrees with the Underwriter that the Company will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of the Companys
counsel and accountants in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriter and dealers; (ii) the cost of printing or producing
this Agreement, the Indenture, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in Section 5(d) hereof,
including the reasonable fees and disbursements of counsel for the Underwriter in connection with
such qualification and in connection with the Blue Sky and legal investment surveys; (iv) the costs
and
-14-
expenses of the Company relating to investor presentations on any road show undertaken in
connection with the marketing of the Securities, including without limitation, expenses associated
with the production of road show slides and graphics, the cost of transportation (it being
understood that the Company and the Underwriters shall share the costs associated with aircraft and
other transportation chartered in connection with the road show, pro rata based on the number of
associated persons using such means of transportation), and the travel and lodging expenses of the
directors and officers of the Company in connection with the road show; (v) any fees charged by
securities rating services for rating the Securities; (vi) any filing fees incident to, and the
reasonable fees and disbursements of counsel for the Underwriter in connection with, any required
review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities;
(vii) the cost of preparing the Securities; (viii) the fees and expenses of the Trustee and the
reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; and (ix) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriter will pay all of its own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
8. The obligations of the Underwriter hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Company herein are, at and as of the Time of Delivery, true and correct, the condition that the
Company shall have performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section
5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission and no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable satisfaction;
(b) Latham & Watkins LLP, counsel for the Underwriter, shall have furnished to you such
opinion or opinions, dated the Time of Delivery, substantially in the form of the draft attached
hereto as Annex I, and such counsel shall have received such papers
-15-
and information as they may reasonably request to enable them to pass upon such matters;
(c) Skadden, Arps, Slate Meagher & Flom LLP, counsel for the Company, shall have furnished to
you (i) their written opinions, dated the Time of Delivery, substantially in the form of the draft
attached hereto as Annex II (a), (ii) their written letter, dated the Time of Delivery,
substantially in the form of the draft attached hereto as Annex II (b);
(d) Nicholas J. Pace, Executive Vice President, General Counsel and Secretary of the Company,
shall have furnished to you his written opinion, dated the Time of Delivery, substantially in the
form of the draft attached hereto as Annex III;
(e) On the date of the Prospectus prior to the execution of this Agreement, at 9:30 a.m., New
York City time, on the effective date of any post effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and also at the Time of Delivery, KPMG LLP shall
have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form
and substance reasonably satisfactory to you, to the effect set forth in Annex IV hereto;
(f) (i) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in the Pricing Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the
respective dates as of which information is given in the Pricing Prospectus, there has not have
been any change in the capital stock or long term debt of the Company or any of its subsidiaries
(other than (i) the purchase of an immaterial number of shares of the Companys common stock made
pursuant to the Companys share repurchase program, (ii) the exercise of an immaterial number of
options to purchase shares of common stock, (iii) the granting of an immaterial number of options
to purchase shares of common stock, (iv) the forfeiture of an immaterial number of options to
purchase shares of common stock and (v) the purchase of an immaterial number of shares of the
Companys common stock made in connection with the exercise of stock options to the extent
necessary to pay withholding taxes) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs, management, 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 Pricing Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in this Agreement and the
Prospectus;
(g) At or after the Applicable Time, there shall not have occurred any downgrading, nor shall
any public announcement have been made of any intended or potential downgrading or of any
surveillance or review, with possible negative
-16-
implications, in the rating accorded any debt securities of the Company or any of its
subsidiaries or the financial strength or claims paying ability of the Company or any of its
subsidiaries by any nationally recognized statistical rating organization as such term is defined
for purposes of Rule 436(g)(2) under the Act;
(h) At or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading in the Companys securities on the
New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed
with the offering or the delivery of the Securities on the terms and in the manner contemplated in
the Prospectus;
(i) The Company shall have complied with the provisions of Section 5(e) hereof with respect to
the furnishing of prospectuses;
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of the Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed at or prior to the
Time of Delivery, as to the matters set forth in subsections (a) and (f) of this Section and as to
such other matters as you may reasonably request.
9. (a) The Company will indemnify and hold harmless the Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any issuer information filed or required to be
filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; except that the Company shall
not, in connection with any one such action or proceeding or separate but substantially similar
actions or proceedings arising out of the same general allegations, be liable for the fees and
expenses of more than one separate firm of attorneys at any time for all indemnified parties,
except that in the case
-17-
of a conflict of interest, additional counsel may be retained, and except to the extent that
local counsel, in addition to its regular counsel, is required in order to effectively defend
against such action or proceeding or except as otherwise provided in subsection (c) below;
provided, however, that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment
or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity
with written information furnished to the Company by the Underwriter
expressly for use therein;
(b) The Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim
as such expenses are incurred;
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party
-18-
shall, without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party;
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriter, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriter on the other
and the parties relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No
-19-
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriter within the meaning of the Act and each broker-dealer
affiliate of the Underwriter; and the obligations of the Underwriter under this Section 9 shall be
in addition to any liability which the Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company (including any person who,
with his or her consent, is named in the Registration Statement as about to become a director of
the Company) and to each person, if any, who controls the Company within the meaning of the Act.
10. [Reserved].
11. The respective indemnities, agreements, representations, warranties and other
statements of the Company and the Underwriter, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriter or any controlling person of the Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company
shall not then be under any liability to the Underwriter except as provided in Sections 7 and 9
hereof; but, if for any other reason, the Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriter through you for all expenses
approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the
Underwriter in making preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to the Underwriter except as provided in Sections
7 and 9 hereof.
13. All statements, requests, notices and agreements hereunder shall be in writing,
and if to the Underwriter to: Goldman, Sachs & Co., 200 West Street, New York, New York
10282-2198, Attention: Registration Department; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriter is required to obtain, verify and record
information that identifies its clients, including the Company, which information may include the
name and address of its clients, as well as other information that will allow the Underwriter to
properly identify its clients.
-20-
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriter, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or the Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from the Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term
business day shall mean any day when the Commissions office in Washington, D.C. is open for
business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the
Securities pursuant to this Agreement is an arms-length commercial transaction between the
Company, on the one hand, and the Underwriter, on the other, (ii) in connection therewith and with
the process leading to such transaction the Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriter has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the Underwriter with respect to the subject matter hereof.
18. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE
OF NEW YORK. The Company and the Underwriter agree that any suit or proceeding arising in respect
of this agreement or our engagement will be tried exclusively in the U.S. District Court for the
Southern District of New York or, if that court does not have subject matter jurisdiction, in any
state court located in The City and County of New York and the Company and the Underwriter agree to
submit to the jurisdiction of, and to venue in, such courts.
19. The Company and the Underwriter hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
-21-
20. This Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company (and the Companys
employees, representatives, and other agents) are authorized to disclose to any and all persons,
the tax treatment and tax structure of the potential transaction and all materials of any kind
(including tax opinions and other tax analyses) provided to the Company relating to that treatment
and structure, without the Underwriter imposing any limitation of any kind. However, any
information relating to the tax treatment and tax structure shall remain confidential (and the
foregoing sentence shall not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, tax treatment means U.S. federal and state income tax
treatment and tax structure is limited to any facts that may be relevant to that treatment.
-22-
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement between you and the Company.
Very truly yours, AMERIGROUP Corporation |
||||
By: | /s/ James W. Truess | |||
Name: | James W. Truess | |||
Title: | Executive Vice President and Chief Financial Officer | |||
Accepted as of the date hereof: | ||||
Goldman, Sachs & Co. | ||||
By:
|
/s/ Goldman, Sachs & Co.
|
SCHEDULE I
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
None.
(b) Additional Documents Incorporated by Reference:
None.
Schedule I
- 1