UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported): May 22, 2009
MSCI
Inc.
(Exact name of
registrant as specified in its charter)
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Delaware
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001-33812
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13-4038723
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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88
Pine Street, New York, NY 10005
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10005
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(Address
of principal executive offices)
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(Zip
Code)
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(212)
804-3900
(Registrant’s
telephone number, including area code)
NOT
APPLICABLE
(Former name or
former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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On May 19, 2009, MSCI Inc. (the
“Registrant”) entered into an Underwriting Agreement (the “Agreement”) with
Morgan Stanley and Morgan Stanley and Co. Incorporated, as the representative of
the several underwriters named in Schedule I thereto (collectively, the
“Underwriters”), for the sale by Morgan Stanley of an aggregate of 27,708,653
shares of the Registrant's class A common stock, par value $0.01 per
share. The secondary offering is being made pursuant to the Registrant’s
registration statement on Form S-3 (Registration No. 333-159311) dated May 18,
2009. The foregoing description does not purport to be a complete
statement of the parties’ rights and obligations under the Agreement. The
Agreement is filed as Exhibit 1.1 to this Form 8-K. The description of the
material terms of the Agreement is qualified in its entirety by reference to
such exhibit.
(d) Exhibits.
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Exhibit No.
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Description
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Exhibit 1.1
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Underwriting
Agreement, dated May 19, 2009, among MSCI Inc., Morgan Stanley and Morgan
Stanley & Co. Incorporated, as representative of the several
underwriters named in Schedule I thereto
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Exhibit 5.1
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Opinion of Davis Polk &
Wardwell
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Exhibit
23.1
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Consent of Davis Polk &
Wardwell (included in Exhibit 5.1)
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2
Pursuant to the requirements of the
Exchange Act, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
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MSCI Inc.
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Date: May 22,
2009
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By:
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/s/ Henry A.
Fernandez
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Name:
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Henry A.
Fernandez
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Title:
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Chief Executive Officer,
President
and
Chairman
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3
Exhibit 1.1
27,708,653
Shares
MSCI
INC.
Class
A Common Stock (Par Value $0.01 Per Share)
UNDERWRITING
AGREEMENT
May 19,
2009
May 19,
2009
Morgan
Stanley & Co. Incorporated
William
Blair & Company, L.L.C.
Citigroup
Global Markets Inc.
Keefe,
Bruyette & Woods, Inc.
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
UBS
Securities LLC
Brean
Murray, Carret & Co., LLC.
Fox-Pitt
Kelton Cochran Caronia Waller (USA) LLC
JMP
Securities LLC
BNY
Mellon Capital Markets, LLC
BB&T
Capital Markets, a division of Scott & Stringfellow, Inc.
Keybanc
Capital Markets Inc.
PNC
Capital Markets, LLC
Suntrust
Robinson Humphrey
Wachovia
Capital Markets, LLC
c/o Morgan
Stanley & Co. Incorporated
1585
Broadway
New York,
New York 10036
Ladies
and Gentlemen:
Morgan
Stanley, a Delaware corporation (the “Selling Shareholder”), a
shareholder of MSCI Inc., a Delaware corporation (the “Company”), proposes to sell to
the several underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of
27,708,653 shares (the “Shares”) of the Company’s
Class A Common Stock, par value $0.01 per share (the “Class A Common
Stock”). The shares of Class A Common Stock and Class B Common
Stock, par value $0.01 per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to collectively
as the “Common
Stock.”
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement, including a prospectus, on Form S-3 (File No. 333-159311), relating
to securities (the “Shelf
Securities”), including the Shares. The registration statement
as amended to the date of this Agreement, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A or Rule 430B under the Securities Act of 1933,
as amended (the “Securities
Act”), is hereinafter referred to as the “Registration Statement”, and
the related prospectus covering the Shelf Securities dated May 18, 2009 in
the form first used to confirm sales of the Shares (or in the form first made
available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
“Base
Prospectus.” The Base Prospectus, as supplemented by the
prospectus supplement specifically relating to the Shares in the form first used
to confirm sales of the Shares (or in the form first made
available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
“Prospectus,” and the
term
“preliminary prospectus” means
the preliminary form of the Prospectus dated May 18, 2009 and distributed to
prospective purchasers of the Shares.
For
purposes of this Agreement, “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means
the preliminary prospectus, together with the free writing prospectuses, if any,
and the term sheets communicated pursuant to Rule 134 under the Securities
Act, if any, each identified in Schedule II hereto, and “broadly available road show”
means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the
Securities Act that has been made available without restriction to any
person. As used herein, the terms “Registration Statement,”
“Base Prospectus,”
“preliminary
prospectus,” “Time of
Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment,” and “amend” as used herein with
respect to the Registration Statement, the Base Prospectus, the Time of Sale
Prospectus, and any preliminary prospectus or free writing prospectus shall
include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are
deemed to be incorporated by reference therein.
1. Representations and Warranties of
the Company. The Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The
Company meets the requirements for the use of Form S-3 under the Securities Act;
the Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or, to the Company’s knowledge, threatened by
the Commission. The Registration Statement is an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act), the
Company is a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) eligible to use the Registration Statement as an automatic shelf
registration statement and the Company has not received notice that the
Commission objects to the use of the Registration Statement as an automatic
shelf registration statement.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied, or will comply when so filed, in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with the offering
when the Prospectus is not yet available
to prospective purchasers and at the Closing Date (as defined in
Section 5), the Time of Sale Prospectus, as then amended or supplemented by
the Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a
2
material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (v) each broadly available road
show, if any, when considered together with the Time of Sale Prospectus, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (vi) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or on behalf of or used
or referred to by the Company complies or will comply in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule II hereto, and electronic road
shows, if any, each furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each subsidiary of the Company have been duly
and validly
3
authorized
and issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) The
authorized capital stock of the Company will, on the Closing Date (as defined in
Section 5), conform as to legal matters to the description thereof
contained in each of the Time of Sale Prospectus and the
Prospectus.
(h) The
shares of Common Stock (including the Shares to be sold by the Selling
Shareholder) have been duly authorized and are validly issued, fully paid and
non-assessable.
(i) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene (i) any provision of
applicable law, (ii) any provision of the certificate of incorporation or
by-laws of the Company, (iii) any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, except, in the case of clauses (i) and (iv) above, where such
contravention would not, singly or in the aggregate, have a material adverse
effect on the Company or on the power and ability of the Company to perform its
obligations under this Agreement or to consummate the transactions contemplated
by the Time of Sale Prospectus. No consent, approval, authorization
or order of, or qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares and except for any
such consents, approvals, authorizations, orders or qualifications the absence
of which would not, singly or in the aggregate, have a material adverse effect
on the Company or on the power and ability of the Company to perform its
obligations under this Agreement or to consummate the transactions contemplated
by the Time of Sale Prospectus.
(j) There has
not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Time of Sale
Prospectus.
(k) There are
no legal or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and
proceedings that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or
on the power or ability of the Company to perform its obligations under this
Agreement or to consummate the transactions contemplated by the Time of Sale
Prospectus or (ii) that are required to be described in the Registration
Statement or the
4
Prospectus
and are not so described; and there are no statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(l) Each
preliminary prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(m) The
Company is not required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended.
(n) The
Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(o) There are
no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) Except as
described in the Time of Sale Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Securities Act
with respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the Registration
Statement.
(q) Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and
its subsidiaries have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction; (ii) the Company has
not purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution
of any kind on its capital stock other than ordinary and customary dividends;
and (iii) there has not been any material change in the capital stock, short
term debt or
5
long term
debt of the Company and its subsidiaries, except in each case as described in
the Registration Statement, the Time of Sale Prospectus and the Prospectus,
respectively.
(r) The
Company and its subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them which is material to the business of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances and defects except such as
are described in the Time of Sale Prospectus or such as do not materially affect
the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
subsidiaries, in each case except as described in the Time of Sale
Prospectus.
(s) The
Company and its subsidiaries own or possess or, to the knowledge of the Company,
it or its subsidiaries can acquire on reasonable terms, all material patents,
patent rights, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any
of the foregoing, except in each case which, singly or in the aggregate, would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(t) No
material labor dispute with the employees of the Company or any of its
subsidiaries exists, except as described in the Time of Sale Prospectus, or, to
the knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors that could have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(u) The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; neither
the Company nor any of its subsidiaries has been refused any insurance coverage
sought or applied for; and neither the Company nor any of its subsidiaries has
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, except as described in the Time of Sale
Prospectus.
(v) The
Company and its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except as would
not have a material
6
adverse
effect on the Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole, except as described in the
Time of Sale Prospectus.
(w) The
Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Except as described in the Time of Sale Prospectus,
since the end of the Company’s most recent audited fiscal year, there has been
(i) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (ii) no change in the Company’s
internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(x) Except as
described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the
date hereof, including any sales pursuant to Rule 144A under, or Regulation D or
S of, the Securities Act, other than shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee or director compensation
plans or pursuant to outstanding options, rights or warrants.
(y) Neither
the Company nor any of its subsidiaries is required to be registered, licensed
or qualified pursuant to the Investment Advisers Act of 1940, as amended, and
the rules and regulations promulgated thereunder.
(z) Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), that is maintained, administered or
contributed to by the Company or any of its affiliates for employees or former
employees of the Company has been maintained in all material respects in
compliance with its terms and the requirements of any applicable statutes,
orders, rules and regulations, including ERISA and the Internal Revenue Code of
1986, as amended (the “Code”). No prohibited transaction, within
the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any such plan excluding transactions effected pursuant
to a statutory or administrative exemption and transactions with respect to
which no material liability to the Company has occurred or could reasonably be expected to occur,
either individually or in the aggregate; and for each such plan that is subject
to the funding rules of Section 412 of the Code or Section 302 of
ERISA, no “accumulated funding deficiency” as defined in Section 412 of the
Code has been incurred, whether or not waived, and the fair market value of the
assets
7
of each such plan (excluding for these
purposes accrued but unpaid contributions) exceeds the present value of all
benefits accrued under such plan determined
using reasonable actuarial assumptions.
(aa) The
historical consolidated financial statements (including the related notes) set
forth in the Registration Statement, the Time of Sale Prospectus and the
Prospectus comply in all material respects with the requirements of the
Securities Act and present fairly in all material respects the consolidated
financial condition, the consolidated results of operations and the consolidated
changes in cash flows of the entities purported to be shown thereby in
conformity with generally accepted accounting principles; and the summary and
selected historical financial data set forth in the Registration Statement, the
Time of Sale Prospectus and the Prospectus present fairly in all material
respects the information shown therein and have been compiled on a basis
consistent in all material respects with that of the audited consolidated
financial statements set forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus or the unaudited condensed consolidated financial
statements, as the case may be.
(bb) Deloitte
& Touche LLP, whose reports are incorporated by reference into the
Registration Statement, is and, during the periods covered by their reports, was
an independent registered public accounting firm as required by the Securities
Act and the published rules and regulations thereunder adopted by the Commission
and the Public Company Accounting Oversight Board (United States).
(cc) The
statistical and market and industry-related data included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, other than the data
furnished to the Company by the Underwriters specifically for use therein, are
based on or derived from sources that the Company reasonably believes to be
reliable and accurate in all material respects.
(dd) Neither
the Company nor any of its subsidiaries is (i) in violation of its certificate
of incorporation or by-laws or (ii) in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, credit agreement
or other agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject, except for any default
described in clause (ii) which would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(ee) The
Company and each of its subsidiaries (to the extent not included in the
consolidated tax returns of Morgan Stanley in the ordinary course of business)
have filed all federal, state, local and foreign tax returns required to be
filed through the date of this Agreement
or have requested extensions thereof (except for cases in which the failure to
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole) and have paid all taxes required to be paid
thereon, and, except as currently being contested in good faith and for which
reserves required by generally accepted accounting principles have been created
in the financial statements of the Company, no
8
tax
deficiency has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company nor any of its subsidiaries
have any notice or knowledge of any tax deficiency which could reasonably be
expected to be determined adversely to the Company or its subsidiaries and which
could reasonably be expected to have) a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(ff) The
Company and its subsidiaries have not, nor, to the knowledge of the Company, has
any director, officer, agent, employee or other person associated with or acting
on behalf of the Company or its subsidiaries, (A) taken any action, directly or
indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”)
or (B) used any of the funds of the Company or its subsidiaries with an unlawful
purpose or in an unlawful manner for any contribution, gift, entertainment or
other expense relating to political activity or as a means to permit the
operation of the Company or any of its subsidiaries or to obtain any concession
in contravention of any applicable law, made any direct or indirect payment to
any foreign or domestic government official (or “Foreign Official”, as such
term is defined in the FCPA) or employee in contravention of any applicable law
from any of the funds of the Company or its subsidiaries, or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment in
contravention of any applicable law and (C) the Company, and to the knowledge of
the Company, its affiliates, have conducted their businesses in compliance with
the FCPA and operate under a Morgan Stanley program designed to ensure, and
which are reasonably expected to continue to ensure, continued compliance
therewith.
(gg) Neither
the Company, nor any of its subsidiaries, or to the knowledge of the Company,
any director, officer, agent, employee or controlled affiliate of the Company or
its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”).
(hh) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the money laundering statutes of all jurisdictions, the rules
and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
2.
Representations and Warranties of
the Selling Shareholder. The Selling Shareholder represents
and warrants to and agrees with each of the Underwriters that:
(a) This
Agreement has been duly authorized, executed and delivered by or on behalf of
the Selling Shareholder.
9
(b) The
execution and delivery by the Selling Shareholder of, and the performance by the
Selling Shareholder of its obligations under, this Agreement will not contravene
any provision of applicable law, or the certificate of incorporation or by-laws
of the Selling Shareholder, or any agreement or other instrument binding upon
the Selling Shareholder or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Selling Shareholder, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Selling
Shareholder of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(c) The
Selling Shareholder has, and on the Closing Date will have, valid title to, or a
valid “security entitlement” within the meaning of Section 8-501 of the New
York Uniform Commercial Code in respect of, the Shares to be sold by the Selling
Shareholder free and clear of all security interests, claims, liens, equities or
other encumbrances and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement and to sell, transfer and
deliver the Shares to be sold by the Selling Shareholder or a security
entitlement in respect of such Shares.
(d) The
Selling Shareholder is not prompted by any information concerning the Company or
its subsidiaries which is not set forth in the Time of Sale Prospectus to sell
its Shares pursuant to this Agreement.
(e) (1) the
Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (2) the Time of Sale
Prospectus does not, and at the time of each sale of the Shares in connection
with the offering when the Prospectus is not yet available to prospective
purchasers and at the Closing Date (as defined in Section 5), the Time of
Sale Prospectus, as then amended or supplemented by the Company, if applicable,
will not, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (3) each broadly
available road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and (4) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the
representations and warranties set forth in this paragraph 2(a)(v) are limited
to statements or omissions made in reliance upon information
relating to the Selling Shareholder furnished to the Company in writing by the
Selling Shareholder expressly for use in the Registration Statement, the Time of
Sale Prospectus, the Prospectus or any amendments or supplements
thereto.
(f)
The
Selling Shareholder has no reason to believe that the representations and
warranties of the Company contained in Section 1 are not true and
correct.
10
3. Agreements to Sell and
Purchase. The Selling Shareholder hereby agrees to sell to the
several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Selling Shareholder at $20.69375 a share (the “Purchase Price”) the number of
Shares set forth in Schedule I hereto opposite the name of such
Underwriter.
The
Company hereby agrees that, without the prior written consent of Morgan Stanley
& Co. Incorporated on behalf of the Underwriters, it will not, during the
period ending 60 days after the date of the Prospectus, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise.
The
restrictions contained in the preceding paragraph shall not apply to (a) the
Shares to be sold hereunder, (b) the issuance of shares of Common Stock upon the
exercise of options granted under employee stock option plans existing as of the
date hereof, (c) grants of employee or director stock options or restricted
stock in accordance with the terms of a plan in effect on the date hereof, and
(d) the issuance by the Company of up to 10,006,989 shares of Common Stock (or
options, warrants or convertible securities relating to shares of Common Stock)
in connection with bona fide mergers or acquisitions, joint ventures, commercial
relationships or other strategic transactions, provided that the acquiree of
any such shares of Common Stock (or options, warrants or convertible securities
relating to shares of Common Stock) so issued enters into an agreement in the
form of Exhibit A hereto with respect to such shares of Common Stock (or
options, warrants or convertible securities relating to shares of Common Stock)
for the remainder of the 60-day restricted period and possible extension of such
period described below in this paragraph.
4. Terms of Public
Offering. Each of the Company and the Selling Shareholder are
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after this Agreement has become
effective as in your judgment is advisable. Each of the Company and
the Selling Shareholder are further advised by you that the Shares are to be
offered to the public initially at $21.50 a share (the “Public Offering Price”) and to
certain dealers selected by you at a price that represents a concession not in
excess of $0.484 a share under the Public Offering Price.
5. Payment and Delivery. Payment
for the Shares shall be made to the Selling Shareholder in Federal or other
funds immediately available in New York City against delivery of such Shares for
the respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on May 22, 2009, or at such other time on the same or such other date, not
later than June 1, 2009, as shall be designated in writing by
you. The time and date of such payment are hereinafter referred to as
the “Closing
Date.”
11
The
Shares shall be registered in such names and in such denominations as you shall
request in writing not later than one full business day prior to the Closing
Date. The Shares shall be delivered to you on the Closing Date, for
the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
6. Conditions to the Underwriters’
Obligations. The several obligations of the Underwriters are
subject to the following conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the securities of the Company, Morgan Stanley or any of their
respective subsidiaries by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus as of the date of this Agreement that,
in Morgan Stanley & Co. Incorporated’s judgment, is material and adverse and
that makes it, in Morgan Stanley & Co. Incorporated’s judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date:
(i) a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 6(a)(i) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing
Date. The executive officer signing and delivering such certificate
may rely upon the best of his or her knowledge as to proceedings threatened;
and
(ii) a
certificate, dated the Closing Date and signed by an executive officer of the
Selling Shareholder, to the effect that the representations and warranties of
the Selling Shareholder contained in this Agreement are true and correct as of
the Closing Date; and that the Selling Shareholder has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
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(c) The
Underwriters shall have received on the Closing Date opinions, each dated the
Closing Date, of Davis Polk & Wardwell, outside counsel for the Company,
substantially in the form attached as Exhibits B-1 and B-2 hereto.
(d) The
Underwriters shall have received on the Closing Date an opinion, dated the
Closing Date, of Frederick W. Bogdan, General Counsel of the Company,
substantially in the form attached as Exhibit C hereto.
(e) The
Underwriters shall have received on the Closing Date an opinion, dated the
Closing Date, of Davis Polk & Wardwell, counsel for the Selling Shareholder,
substantially in the form attached as Exhibit D hereto.
(f) The
Underwriters shall have received on the Closing Date an opinion or opinions of
Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, dated
the Closing Date, covering such matters as the Underwriters may reasonably
request.
The
opinions described in Sections 6(c), 6(d) and 6(e) above shall be rendered to
the Underwriters at the request of the Company or the Selling Shareholder as the
case may be, and shall so state therein.
(g) The
Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to the Underwriters, from Deloitte & Touche
LLP, independent public accountants, containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Registration Statement, the
Time of Sale Prospectus and the Prospectus; provided that the letter
delivered on the Closing Date shall use a “cut-off date” not earlier than the
date hereof.
(h) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and each officer and director of the Company set forth on
Schedule III hereto, relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing
Date.
7. Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a) To
furnish to you, without charge, six signed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and to
furnish to you in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this Agreement and
during the period mentioned in Section 7(e) or 7(f) below, as many copies
of the Time of Sale Prospectus, the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
13
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared by
or on behalf of, used by, or referred to by the Company and not to use or refer
to any proposed free writing prospectus to which you reasonably
object.
(d) Not to
take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to file
thereunder.
(e) If the
Time of Sale Prospectus is being used to solicit offers to buy the Shares at a
time when the Prospectus is not yet available to prospective purchasers and any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then on
file, or if, in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of
Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Time of Sale Prospectus is delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If,
during such period after the first date of the public offering of the Shares as
in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the
notice referred to in Rule 173(a) under the Securities Act) is required by law
to be delivered in connection with sales by an underwriter or dealer, any event
shall occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus (or in lieu thereof the notice referred
to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on behalf of
the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented
14
will not,
in the light of the circumstances when the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with applicable law.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue
Sky laws of such jurisdictions as you shall reasonably request; provided that in
no event shall the Company or any of its subsidiaries be obligated to qualify to
do business as a foreign corporation in any jurisdiction where it is not already
so qualified, to file any general consent to service of process, or to subject
itself to taxation in any jurisdiction where it is not already subject to
taxation.
(h) To make
generally available to the Company’s security holders and to you as soon as
practicable an earning statement (which need not be audited) covering a period
of at least twelve months beginning with the first fiscal quarter of the Company
occurring after the date of this Agreement which shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder; provided that such delivery
requirement shall be deemed met by the Company’s compliance with its reporting
requirements pursuant to the Exchange Act and the rules and regulations
promulgated by the Commission thereunder.
(i) If the
third anniversary of the initial effective date of the Registration Statement
occurs before all the Shares have been sold by the Underwriters, prior to the
third anniversary to file a new shelf registration statement and to take any
other action reasonably necessary to permit the public offering of the Shares to
continue without interruption; provided that such
requirement to file a new registration statement shall not require the Company
to file any registration statement other than on Form S-3 (or any successor
form); references herein to the Registration Statement shall include the new
registration statement declared effective by the Commission.
8. Expenses. Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Selling Shareholder agrees to pay or cause to be
paid, including by reimbursing the Company, all expenses incident to the
performance of its and the Company’s obligations under this Agreement,
including: (i) the fees, disbursements and expenses
of the Company’s counsel, the Company’s accountants and counsel for the Selling
Shareholder in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including the filing
fees payable to the Commission relating to the Shares (within the time period
required by Rule 456(b)(1) under the Securities Act, if applicable), all
printing costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the reasonable cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the Shares
under state securities laws and all expenses in connection with the
15
qualification
of the Shares for offer and sale under state securities laws as provided in
Section 7(g) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the Financial Industry Regulatory
Authority (“FINRA”), (v)
all costs and expenses incident to listing the Shares on the New York Stock
Exchange, (vi) the cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar or depositary, (viii)
half of the costs and expenses of the Company relating to investor presentations
on any “road show” undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, and travel and lodging expenses of the
representatives and officers of the Company and any such consultants, except
that the Underwriters will pay all of the cost of any aircraft chartered in
connection with the road show, (ix) the document production charges and expenses
associated with printing this Agreement, (x) all expenses in connection with any
offer and sale of the Shares outside of the United States, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with offers and sales outside of the United States, and (xi) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 10 entitled “Indemnity and Contribution,” and the last
paragraph of Section 12 below, the Underwriters will pay all of their costs
and expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Shares by them, any advertising expenses
connected with any offers they may make and all of the cost of any aircraft
chartered in connection with any road show and half of the other costs and
expenses relating to any road show as described in (viii) above.
9. Covenants of the
Underwriters. Each Underwriter severally covenants with the
Company not to take any action that would result in the Company being required
to file with the Commission under Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the
Company thereunder, but for the action of the Underwriter.
10. Indemnity and
Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, each person, if
any, who controls any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, and each affiliate
of any Underwriter within the meaning of Rule 405 under the Securities Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus,
the Time of Sale Prospectus, any issuer free writing prospectus as defined in
Rule 433(h) under the Securities Act, any Company information
16
that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act, or the Prospectus or any amendment or supplement thereto, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use
therein.
(b) The
Selling Shareholder agrees to indemnify and hold harmless each Underwriter, each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company
information that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act, or the Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to the Selling Shareholder furnished to the Company in writing by the
Selling Shareholder expressly for use in the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus or the Prospectus or any amendment or supplement
thereto.
(c) The
Selling Shareholder agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus, the Time of Sale Prospectus, any
issuer free writing prospectus as defined in Rule 433(h) under the Securities
Act, any Company information that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any
amendment or supplement thereto, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only with reference to
information relating to the Selling Shareholder furnished in writing by or on
behalf of the Selling Shareholder expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement thereto.
17
(d) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Selling Shareholder, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Company or the Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus,
the Time of Sale Prospectus, any issuer free writing prospectus as defined in
Rule 433(h) under the Securities Act, any Company information that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act, or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus or the Prospectus or any amendment or supplement
thereto.
(e) In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 10(a), 10(b), 10(c) or 10(d), such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel
shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of
any Underwriter within the meaning of Rule 405 under the Securities Act, (ii)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section, (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Selling Shareholder and all
persons, if any, who
18
control
the Selling Shareholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for the Underwriters and such control persons
and affiliates of any Underwriters, such firm shall be designated in writing by
Morgan Stanley & Co. Incorporated. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the
Company. In the case of any such separate firm for the Selling
Shareholder and such control persons of the Selling Shareholder, such firm shall
be designated in writing by the Selling Shareholder. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days’ prior written notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(f) To the
extent the indemnification provided for in Section 10(a), 10(b), 10(c) or
10(d) is unavailable to an indemnified party or insufficient in respect of any
losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 10(f)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
10(f)(i) above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Shareholder on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Selling Shareholder and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the
19
table on
the cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company and the Selling Shareholder
on the one hand and the Underwriters on the other hand 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, the Selling Shareholder or the
Underwriters, as the case may be, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters’ respective obligations to contribute
pursuant to this Section 10 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint. The
liability of the Selling Shareholder under the contribution agreement contained
in this paragraph shall be limited to an amount equal to the aggregate Public
Offering Price of the Shares sold by the Selling Shareholder under this
Agreement.
(g) Each of
the Company, the Selling Shareholder and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 10 were
determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 10(f). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 10(f) shall be
deemed to include, subject to the limitations set forth above, 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 Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 10
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(h) The
indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company and the Selling
Shareholder contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter, the Selling Shareholder or
any person controlling the Selling Shareholder, or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
11. Termination. The
Underwriters may terminate this Agreement by notice given by Morgan Stanley
& Co. Incorporated to the Company, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on, or by, as the case may be, any of the
New York Stock Exchange, the
20
American
Stock Exchange, the NASDAQ Global Market, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over the counter market, (iii) a material disruption in securities
settlement, payment or clearance services in the United States shall have
occurred, (iv) any moratorium on commercial banking activities shall have been
declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in Morgan Stanley & Co. Incorporated’s judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Shares on the terms and in the manner contemplated in the Time of Sale
Prospectus or the Prospectus.
12. Effectiveness; Defaulting
Underwriters. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
If, on
the Closing Date, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event
shall the number of Shares that any Underwriter has agreed to purchase pursuant
to this Agreement be increased pursuant to this Section 12 by an amount in
excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to you, the Company and the Selling Shareholder for the purchase of
such Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter,
the Company, or the Selling Shareholder. In any such case either you
or the Selling Shareholder shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement, in the Time of Sale Prospectus, in the
Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
21
If this
Agreement shall be terminated by the Underwriters, or any of them, because of
any failure or refusal on the part of the Company or the Selling Shareholder to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or the Selling Shareholder shall be unable to
perform its obligations under this Agreement, the Company and the Selling
Shareholder will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
13. Entire
Agreement.
(a) This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate
to the offering of the Shares, represents the entire agreement between the
Company and the Selling Shareholder, on the one hand, and the Underwriters, on
the other, with respect to the preparation of any preliminary prospectus, the
Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the
purchase and sale of the Shares.
(b) The
Company acknowledges that in connection with the offering of the
Shares: (i) the Underwriters have acted at arms length, are not
agents of, and owe no fiduciary duties to, the Company or any other person, (ii)
the Underwriters owe the Company only those duties and obligations set forth in
this Agreement and prior written agreements (to the extent not superseded by
this Agreement), if any, and (iii) the Underwriters may have interests that
differ from those of the Company. The Company waives to the full
extent permitted by applicable law any claims it may have against the
Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
14. Counterparts. This
Agreement may be signed in two or more counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
15. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
16. Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
17. Notices. All
communications hereunder shall be in writing and effective only upon receipt and
if to the Underwriters shall be delivered, mailed or sent to you in care of
Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New York 10036,
Attention: Equity Syndicate Desk, with a copy to the Legal Department; if to the
Company shall be delivered, mailed or sent to MSCI Inc., 88 Pine Street, New
York, New York 10005, Attention: Frederick W. Bogdan, General Counsel, and if to
the Selling Shareholder, shall be delivered, mailed or sent to Morgan Stanley,
1585 Broadway, New York, New York 10036, Attention: Treasurer.
[Remainder of this page intentionally
left blank]
22
| Very truly yours, | ||||
| MSCI INC. | ||||
| By: | /s/ Michael K. Neborak | |||
|
Name:
|
Michael K. Neborak | |||
|
Title:
|
Chief Financial Officer | |||
| MORGAN STANLEY | ||||
| By: | /s/ Thomas C. Kelleher | |||
|
Name:
|
Thomas C. Kelleher | |||
|
Title:
|
Chief Financial Officer | |||
Underwriting Agreement
Accepted
as of the date hereof
Morgan
Stanley & Co. Incorporated
Acting
severally on behalf of themselves and the several
Underwriters
named in Schedule I hereto
| By: |
Morgan
Stanley & Co. Incorporated
|
|||
| By: | /s/ John D. Tyree | |||
|
Name:
|
John D. Tyree | |||
|
Title:
|
Managing Director | |||
Underwriting Agreement
Exhibits
5.1 and 23.1
OPINION
OF DAVIS POLK & WARDWELL
|
May
22, 2009
|
MSCI
Inc.
88 Pine
St.
New York,
NY 10005
Ladies
and Gentlemen:
We have
acted as counsel for MSCI Inc., a Delaware company (the “Company”) in connection with
the Registration Statement on Form S-3 (File No. 333-159311) (the “Registration Statement”) filed
by the Company with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the “Securities Act”) for the
purpose of registering 27,708,653 shares of its class A common stock, par value
$0.01 per share (the “Common
Stock”).
We, as
your counsel, have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for the purpose of rendering this opinion.
Based
upon the foregoing, we are of the opinion that when the shares of Common Stock
are issued and delivered in accordance with the Underwriting Agreement dated May
19, 2009 made by and between the Company, Morgan Stanley and Morgan Stanley
& Co. Incorporated, as representative of the several underwriters named
therein, such shares of Common Stock will be validly issued, fully paid and
non-assessable.
We are
members of the Bar of the State of New York and the foregoing opinion is limited
to the laws of the State of New York and the General Corporation Law of the
State of Delaware.
We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above and further consent to the reference to our name
under the caption “Validity of the Securities” in the prospectus, which is a
part of the Registration Statement. In giving this consent, we do not
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act.
This opinion is rendered solely to you
in connection with the above matter. This opinion may not be relied
upon by you for any other purpose or relied upon
by or furnished to any other person
without our prior written consent.
|
Very
truly yours,
|
|
|
/s/
Davis Polk & Wardwell
|