Exhibit 10.2


 


EXECUTION VERSION


 


AFFILIATED
MANAGERS GROUP, INC.


 


Shares of Common Stock

(par value $0.01 per share)


 


DISTRIBUTION
AGENCY AGREEMENT


 


May 1, 2009


 


MERRILL LYNCH & CO.


MERRILL LYNCH, PIERCE, FENNER & SMITH


INCORPORATED


One Bryant Park


New York, New York 10036


 


Ladies and Gentlemen:


 


Affiliated Managers Group, Inc., a Delaware
corporation (the “Company”), confirms its agreement with Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the “Manager”), as follows:


 


Introductory.  The Company has entered into a forward stock
purchase transaction with Bank of America, N.A. (the “Forward Purchaser”)
as set forth in a separate letter agreement dated the date hereof, a copy of
which is attached hereto as Exhibit A (the “Initial Confirmation”).  The Company may also enter into additional
forward stock purchase transactions with the Forward Purchaser on substantially
similar terms (each, a “Subsequent Confirmation” and, together with the
Initial Confirmation, the “Confirmations”).  Subject to the terms and conditions herein
and therein, under the Confirmation and, if applicable, the Subsequent
Confirmations, the Company will deliver to the Forward Purchaser, or an
affiliate thereof (including the Manager), up to the number of shares of the
Company’s common stock, par value $0.01 per share (the “Common Stock”),
as may be sold in accordance with the terms of this Agreement.  In connection therewith, the Company and the
Forward Purchaser understand that the Forward Purchaser, through the Manager,
as sales agent, will effect sales of shares of Common Stock having an aggregate
offering price not in excess of $200,000,000 (the “Shares”) on the terms
set forth in Section 2 of this Distribution Agency Agreement (the “Agreement”).


 


Section 1.  Representations and Warranties of the
Company.  The Company represents and
warrants to the Manager that:


 


(a)  Compliance
with Registration Requirements.  The
Company has filed, in accordance with the provisions of the Securities Act of
1933, as amended (the “1933 Act”), and the rules and regulations
thereunder (the “1933 Act Regulations”), with the Securities and
Exchange Commission (the “Commission”) an “automatic shelf registration
statement,” as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”),
on Form S—3 (File No. 333-148029),


 


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including a prospectus, to be used in connection with
the public offering and sale of the Shares, which incorporates by reference
documents that the Company has filed or will file in accordance with the
provisions of the Securities Exchange Act of 1934, as amended (the “1934 Act”),
and the rules and regulations thereunder (the “1934 Act Regulations”),
which registration statement became effective not earlier than three years
prior to the date of this Agreement upon filing under Rule 462(e) of
the 1933 Act Regulations.


 


Except where the context otherwise requires, the
registration statement, as it may have heretofore been amended, including all
documents filed as part thereof or incorporated by reference therein, and
including any information contained in a Prospectus (as defined below) filed
with the Commission pursuant to Rule 430B of the 1933 Act Regulations (“Rule 430B”)
and also including any other registration statement filed with the Commission
pursuant to Rule 462(b) or Rule 429 of the 1933 Act Regulations,
is herein called the “Registration Statement;” 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 herein called the “Base Prospectus;” the prospectus
supplement specifically relating to the Shares prepared and filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations is
herein called the “Prospectus Supplement;” and the Base Prospectus, as
amended and supplemented from time to time by the Prospectus Supplement, is
herein called the “Prospectus.” 
The Registration Statement at the time it originally became effective is
herein called the “Original Registration Statement.”  Any reference herein to the Registration
Statement, the Base Prospectus, Prospectus Supplement or Prospectus or any
amendment or supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein to the
terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include the filing
after the execution hereof with the Commission of any post-effective amendment
to the Registration Statement, any Prospectus Supplement and any document
deemed to be incorporated by reference therein.


 


To the extent that the Registration Statement is not
available for the sales of the Shares as contemplated by this Agreement or the
Company is not a “well known seasoned issuer” as defined in Rule 405 or
otherwise is unable to make the representations set forth in
Section 1(b) at any time when such representations are required, the
Company shall file a new registration statement with respect to any additional
shares of Common Stock necessary to complete such sales of the Shares and shall
cause such registration statement to become effective as promptly as
practicable.  After the effectiveness of
any such registration statement, all references to “Registration Statement”
included in this Agreement shall be deemed to include such new registration
statement, including all documents filed as part thereof or incorporated
therein by reference, and all references to “Prospectus” included in this
Agreement shall be deemed to include the final form of prospectus, including
all documents incorporated therein by reference, included in any such
registration statement, as amended or supplemented from time to time (including
by any prospectus supplement thereto). 
For purposes of this Agreement, all references to the Registration
Statement or the Prospectus or to any amendment or supplement thereto shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering Analysis and Retrieval System (“EDGAR”), and such copy
shall be identical in content to any Prospectus delivered to the Manager for
use in connection with the offering of the Shares.


 


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(b)  Well-Known
Seasoned Issuer.  (1) At the
time of filing of the Original Registration Statement, (2) at the time of
the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the 1933 Act or otherwise (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the 1934 Act or form of prospectus),
(3) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Shares in reliance on the exemption
of Rule 163 of the 1933 Act Regulations, (4) at the earliest time
after the filing of the Original Registration Statement that a bona fide offer
(within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of
the Shares was made, and (5) at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in Rule 405.  The Registration Statement is an “automatic
shelf registration statement,” as defined in Rule 405, and the Shares,
since their registration on the Registration Statement, have been and remain
eligible for registration by the Company on a Rule 405 “automatic shelf
registration statement.”  The Company has
not received from the Commission any notice pursuant to
Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of
the automatic shelf registration statement form.


 


(c)  S-3
Eligibility.  The Company meets, and
at the time of filing of the Original Registration Statement met, the
requirements for use of Form S-3 under the 1933 Act.  The Registration Statement has been filed
with the Commission and is effective under the 1933 Act.  The Company has not received, and has no
notice of, any order of the Commission preventing or suspending the use or
effectiveness of the Registration Statement, or threatening or instituting
proceedings for that purpose.  Any
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 have been so described or filed.  Copies of the Registration Statement and the
Prospectus, any such amendments or supplements and all documents incorporated
by reference therein that were filed with the Commission on or prior to the
date of this Agreement (including one fully executed copy of each of the
Registration Statement and of each amendment thereto for the Manager) have been
delivered to the Manager and its counsel. 
The Company has not distributed any offering material in connection with
the offering or sale of the Shares other than the Registration Statement, the
Prospectus or any other materials, if any, permitted by the 1933 Act and the
1933 Act Regulations and reviewed and consented to by the Manager.


 


(d)  Form Compliance;
No Material Misstatement or Omission of a Material Fact.  Each of the Registration Statement, any
post-effective amendment thereto, the Prospectus and any amendment or
supplement thereto conforms, and when it became effective or was filed with the
Commission conformed, in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations. 
The Registration Statement and any post-effective amendment thereto,
when it became effective or was filed with the Commission, 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 not
misleading.  The Prospectus and any amendment
or supplement thereto does not, and on the date of filing thereof with the
Commission did not, include an 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
foregoing shall not apply to statements in, or omissions from, any such
document in reliance upon, and in conformity with, written information
concerning the 


 


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Manager that was furnished in writing to the Company
by the Manager specifically for use in the preparation thereof.


 


(e)  Issuer Free
Writing Prospectuses.  Any Issuer
Free Writing Prospectus(es) (as defined below) and the Prospectus, as amended
or supplemented, all considered together (collectively, the “General
Disclosure Package”), do 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.


 


As used in this subsection and elsewhere in this
Agreement:


 


“Applicable Time” means the time of each sale
of any Shares pursuant to this Agreement.


 


“Issuer Free Writing Prospectus” means any “issuer
free writing prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Shares, in the form filed
or required to be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to Rule 433(g).


 


Each Issuer Free Writing Prospectus does not, and as
of its issue date and all subsequent times did not, include any information
that conflicts or conflicted with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference
therein, and any preliminary or other prospectus deemed to be a part thereof
that has not been superseded or modified.


 


The representations and warranties in this
Section 1(e) shall not apply to statements in or omissions from the
Registration Statement, the Prospectus or any amendments or supplements thereto
or any Issuer Free Writing Prospectus made in reliance upon and in conformity
with written information furnished to the Company by the Manager expressly for
use therein.


 


(f)  Incorporation
of Documents by Reference.  The
documents incorporated by reference in the Registration Statement and the
Prospectus comply, and at the time they were filed with the Commission
complied, in all material respects with the requirements of the 1934 Act and
the 1934 Act Regulations, and, when read together with the other information in
the Prospectus, do not, and at the time the Original Registration Statement
became effective and at the date of the Prospectus 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 light of the
circumstances under which they were made, not misleading.


 


(g)  Independent
Accountants.  The accountants who
certified the financial statements and supporting schedules incorporated by
reference into the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.


 


(h)  Financial
Statements.  The financial statements
included in or incorporated by reference into the Registration Statement and
the Prospectus, together with the related schedules and notes, present fairly
in all material respects the financial position of the Company and its 


 


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consolidated subsidiaries at the dates indicated and
the consolidated statements of income, changes in 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, except as stated
therein.  The supporting schedules
incorporated by reference into the Registration Statement and the Prospectus
present fairly in accordance with GAAP the information required to be stated
therein.  Any pro forma financial statements of the Company, and the
related notes thereto, included in or incorporated by reference into the
Registration Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma
financial statements and have been properly compiled on the basis described
therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein. 
No other financial statements are required to be set forth in or
incorporated by reference into the Registration Statement or the Prospectus
under the 1933 Act or the 1933 Act Regulations.


 


(i)  No Material
Adverse Change in Business.  Since the
respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change or
prospective material adverse change in the business, management, financial
position, stockholders equity or results of operations of the Company and its
subsidiaries considered as one enterprise from that set forth in the
Registration Statement, the General Disclosure Package and the Prospectus,
whether or not arising in the ordinary course of business (a “Material
Adverse Effect”), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.


 


(j)  Good
Standing of the Company.  The Company
has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the General Disclosure Package and the Prospectus and to enter
into and perform its obligations under, or as contemplated by, this Agreement
and the Confirmations.  The Company is
duly qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.


 


(k)  Good
Standing of Subsidiaries.  Each
subsidiary of the Company has been duly organized or formed and is validly
existing as a corporation, limited partnership, limited liability company,
Massachusetts business trust or general partnership, as the case may be, under
the laws of its jurisdiction of organization and is in good standing under the
laws of its jurisdiction of organization, has power (corporate or otherwise)
and authority to own, lease and operate its properties and to conduct its
business as described in the General Disclosure Package and the Prospectus and
is duly qualified as a foreign corporation, limited partnership, limited
liability company, Massachusetts business trust or general partnership, as the
case may be, to 


 


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transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a Material
Adverse Effect.  Except as otherwise
disclosed in the General Disclosure Package and the Prospectus, all of the
issued shares of capital stock of each subsidiary of the Company which is a
corporation, have been duly authorized and validly issued, and are fully paid
and non-assessable, and to the extent owned by the Company or any of its
subsidiaries (except for directors’ qualifying shares and as described or
reflected generally in the General Disclosure Package and the Prospectus) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, in each case with such exceptions,
individually or in the aggregate, as would not have a Material Adverse
Effect.  The partnership interests,
membership interests and shares of beneficial interest of each subsidiary of
the Company which is a partnership, limited liability company or Massachusetts
business trust have been validly issued in accordance with applicable law and
the partnership agreement, limited liability agreement or declaration of trust,
as applicable, of such subsidiary, and to the extent owned by the Company or
any of its subsidiaries (except as described or reflected generally in the
General Disclosure Package and the Prospectus) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims,
except, in the case of each subsidiary of the Company, for liens, encumbrances,
equities or claims which individually or in the aggregate would not be material
to the Company’s ownership of such subsidiary or to the Company’s exercise of
its rights with respect to such subsidiary; and none of the outstanding shares
of capital stock, partnership interests, membership interests or shares of
beneficial interests, as the case may be, of any subsidiary of the Company was
issued in violation of the preemptive or similar rights of any securityholder
of such subsidiary.


 


(l)  Capitalization.  The Company has the authorized, issued and
outstanding capitalization described in the General Disclosure Package and the
Prospectus (except for subsequent issuances, if any, pursuant to reservations,
agreements or employee benefit plans or pursuant to the exercise of convertible
securities or options, in each case accurately described or reflected in the
General Disclosure Package and the Prospectus, as amended or
supplemented).  The shares of issued and
outstanding capital stock of the Company, including the Shares, have been duly
authorized and validly issued and are fully paid and non-assessable; and none
of the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any securityholder of
the Company.  There are no authorized or
outstanding options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company or any of its
subsidiaries other than those accurately described or reflected in the General
Disclosure Package and the Prospectus, as amended or supplemented, or pursuant
to reservations, agreements or employee benefit plans or the exercise of
convertible securities or options, in each case accurately described or
reflected in the General Disclosure Package and the Prospectus, as amended or
supplemented.


 


(m)  Authorization
of Agreement.  This Agreement has
been duly authorized, executed and delivered by the Company.


 


(n)  Authorization
of Confirmations.  The Initial
Confirmation has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding 


 


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agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).  The Company has duly authorized each Subsequent
Confirmation and, when executed and delivered by the Company, each Subsequent
Confirmation will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or
at law).  The description of the
Confirmation and the Subsequent Confirmations set forth in the General Disclosure
Package and the Prospectus is correct in all material respects.


 


(o)  Authorization
and Description of Shares.  The
description of the Common Stock set forth in the General Disclosure Package and
the Prospectus is correct in all material respects.  The Settlement Shares (as defined in the
Confirmation(s)) have been duly authorized by the Company for issuance and sale
to the Forward Purchaser pursuant to the Confirmation(s) and, if and when
issued and delivered by the Company pursuant to the
Confirmation(s) against payment of the consideration specified therein,
will be validly issued, fully paid and non-assessable and will not be issued in
violation of any preemptive or other similar rights of any securityholder of
the Company.  No holder or beneficial
owner of the Shares or the Settlement Shares will be subject to personal
liability solely by reason of being such a holder or beneficial owner.  The issuance and sale by the Company of the
Settlement Shares to the Forward Purchaser or its affiliate in settlement of
the Confirmation(s) in accordance with the terms thereof and the delivery
by the Forward Purchaser or its affiliate of the Settlement Shares, during the
term of and at settlement of the Confirmation(s), to close out open borrowings
of Common Stock created in the course of the hedging activities created by the
Forward Purchaser or its affiliate relating to its exposure under the
Confirmation(s) will not require registration under the 1933 Act.  The Company will not have an obligation to
file a prospectus supplement pursuant to Rule 424(b) of the 1933 Act
Regulations in connection with any Settlement Shares delivered to the Forward
Purchaser or its affiliate by the Company upon such settlement, and no
prospectus supplement will be required to be filed under
Rule 424(b) of the 1933 Act Regulations in connection with any
Settlement Shares delivered by the Forward Purchaser or its affiliate to close
out open borrowings created in the course of the hedging activities created by
the Forward Purchaser or its affiliate relating to its exposure under the
Confirmation(s), assuming in each case that the Manager complied with
Rule 173 of the 1933 Act Regulations in connection with the sales of
Shares in an amount not less than the Number of Shares (as defined in the
Confirmation(s)).


 


(p)  Listing on
New York Stock Exchange.  The Shares
are listed on the New York Stock Exchange (the “NYSE”) and the Company
has taken no action designed to, or likely to have the effect of, terminating
the listing of the Shares from the NYSE, nor has the Company received any
notification that the Commission or the NYSE is contemplating terminating such
listing.


 


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(q)  Absence of
Defaults and Conflicts.  Neither the
Company nor any of its subsidiaries is in violation of its charter or by-laws
or other constituting or organizational document or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any subsidiary of
the Company is subject (collectively, “Agreements and Instruments”)
except for such defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement and the
Confirmation(s) and the consummation of the transactions contemplated herein
and therein and in the General Disclosure Package and the Prospectus and
compliance by the Company with its obligations hereunder and thereunder, have
been duly authorized by all necessary corporate action and do not, whether with
or without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary of the Company pursuant
to, the Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws or other constituting or organizational instrument as
in effect on the date hereof of the Company or any subsidiary of the Company or
any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company or any of
their assets, properties or operations, except for any such violation of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
law which would not result in a Material Adverse Effect.  As used herein, a “Repayment Event” means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any subsidiary of the Company.


 


(r)  Absence of
Proceedings.  Except as disclosed in
the Registration Statement, the General Disclosure Package and the Prospectus,
there is no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any subsidiary of the Company, which, singly or in the
aggregate, would reasonably be expected to result in a Material Adverse Effect,
or which would reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.


 


(s)  Accuracy of
Exhibits.  All of the descriptions of
contracts or other documents contained or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus are
accurate and complete descriptions in all material respects of such contracts
or other documents.


 


(t)  Absence of
Further Requirements.  No filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its 


 


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obligations hereunder or under the
Confirmation(s) or the consummation of the transactions contemplated by
this Agreement, or for the due execution, delivery or performance of this
Agreement and the Confirmation(s), except such as have been already obtained or
as may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.


 


(u)  Possession
of Licenses and Permits.  The Company
and its subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, “Governmental Licenses”) issued by
the appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except in any such case where the failure to so possess
or to comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.


 


(v)  Title to
Property.  The Company and its
subsidiaries have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties owned by
them, in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the General Disclosure Package and the Prospectus or
(b) would not, singly or in the aggregate, result in a Material Adverse
Effect; and all of the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the General
Disclosure Package and the Prospectus, are in full force and effect, and
neither the Company nor any subsidiary of the Company has any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary of the Company under any of the leases
or subleases mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.


 


(w)  No
Investment Company.  Neither the
Company nor any of its subsidiaries is, and upon the offering of the Shares as
herein contemplated will be, an “investment company” or an entity “controlled”
by an “investment company” as such terms are defined in the Investment Company
Act of 1940, as amended (the “1940 Act”).


 


(x)  Company Not
an Investment Adviser.  The Company
is not required to register as an “investment adviser” or as a “broker-dealer”
within the Investment Advisers Act of 1940, as amended (the “Advisers Act”)
or the 1934 Act, respectively, and the rules and regulations of the
Commission promulgated thereunder.  The
Company is not required to be registered, licensed or qualified as an
investment adviser or broker-dealer under the laws requiring any such
registration, licensing or qualification in any jurisdiction in which it or its
subsidiaries conduct business.  Each of
the subsidiaries has been duly registered as an investment adviser under the
Advisers Act, and has been duly registered as a broker-dealer under the 1934 


 


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Act, and each such registration is in full force and
effect, in each case to the extent such registration is required and with such
exceptions as would not reasonably be expected to have a Material Adverse
Effect.  Each of the subsidiaries is duly
registered, licensed or qualified as an investment adviser and broker-dealer
under state and local laws where such registration, licensing or qualification
is required by such laws and is in compliance with all such laws requiring any
such registration, licensing or qualification, in each case with such
exceptions, individually or in the aggregate, as would not reasonably be
expected to have a Material Adverse Effect.


 


(y)  Investment
Adviser Subsidiaries.  Each
subsidiary of the Company which is required to be registered as an investment
adviser or broker-dealer is and has been in compliance with all applicable laws
and governmental rules and regulations, as may be applicable to its
investment advisory or broker-dealer business, except to the extent that such
non-compliance would not reasonably be expected to result in a Material Adverse
Effect and none of such subsidiaries is prohibited by any provision of the
Advisers Act or the 1940 Act from acting as an investment adviser.  Each subsidiary of the Company which is
required to be registered as a broker-dealer is a member in good standing of
the Financial Industry Regulatory Authority (“FINRA”).  No subsidiary of the Company which is
required to be registered as an investment adviser or broker-dealer is in
default with respect to any judgment, order, writ, injunction, decree, demand
or assessment issued by any court or any foreign, federal, state, municipal or
other governmental agency, board, commission, bureau, instrumentality or
department, domestic or foreign, or by any self-regulatory authority relating
to any aspect of its investment advisory or broker-dealer business, which would
need to be disclosed pursuant to Rule 206(4)-4(b) under the Advisers
Act, or which is reasonably likely to give rise to an affirmative answer to any
of the questions in Item 11, Part 1 of the Form ADV of such
registered investment adviser or which is reasonably likely to give rise to an
affirmative answer to any of the questions in Item 7 of the Form BD of
such broker-dealer.


 


(z)  Investment
Company Mutual Funds.  Each mutual
fund of which a subsidiary of the Company serves as the investment advisor (a “Mutual
Fund”) has been since inception, is currently and will be immediately after
consummation of the transactions contemplated herein, a duly registered
investment company in compliance with the 
1940 Act, and the rules and regulations promulgated thereunder and
duly registered or licensed, except where any failure to be duly registered,
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect.  Since their
initial offering, shares of each of the Mutual Funds have been duly qualified
for sale under the securities laws of each jurisdiction in which they have been
sold or offered for sale at such time or times during which such qualification
was required, and, if not so qualified, the failure to so qualify would not
reasonably be expected to have a Material Adverse Effect.  The offering and sale of shares of each of
the Mutual Funds have been registered under the 1933 Act during such period or
periods for which such registration is required; the related registration
statement has become effective under the 1933 Act; no stop order suspending the
effectiveness of any such registration statement has been issued and no
proceedings for that purpose have been instituted or, to the best knowledge of
the Company, are contemplated.  Except to
the extent that such failure to comply, misstatement or omission, as the case
may be, would not reasonably be likely to result in a Material Adverse Effect,
the registration statement of each Mutual Fund, together with the amendments
and supplements thereto, under the 1940 Act and the 1933 Act has, at all times
when such registration statement 


 


10

















 


was effective, complied in all material respects with
the requirements of the 1940 Act and the 1933 Act then in effect and neither
such registration statement nor any amendments or supplements thereto contained,
at the time and in light of the circumstances in which they were made, 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, at
the time and in the light of the circumstances under which they were made, not
misleading.  All shares of each of the
Mutual Funds were sold pursuant to an effective registration statement, or
pursuant to a valid exemption from registration, and have been duly authorized
and are validly issued, fully paid and non-assessable.  Each of the Mutual Funds’ investments has
been made in accordance with its investment policies and restrictions set forth
in its registration statement in effect at the time the investments were made
and have been held in accordance with its respective investment policies and
restrictions, to the extent applicable and in effect at the time such
investments were held, except to the extent any failure to comply with such
policies and restrictions, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.


 


(aa)  Investment Advisory Agreements.  The Company is not party to any investment
advisory agreement or distribution agreement and is not serving or acting as an
investment adviser to any person.  Each
of the investment advisory agreements to which any of its subsidiaries is a
party is a legal and valid obligation of such subsidiary and complies with the
applicable requirements of the Advisers Act and the rules and regulations
of the Commission thereunder, except where the failure to so comply would not
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  Each of the investment
advisory agreements and distribution agreements between a subsidiary of the
Company and a Mutual Fund is a legal and valid obligation of such subsidiary
and complies with the applicable requirements of the 1940 Act, and in the case
of such distribution agreements, with the applicable requirements of the 1934
Act, except where the failure to so comply would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.  No investment advisory agreement or
distribution agreement to which any of the subsidiaries is a party that was
either in effect on January 1, 2006 or entered into by a subsidiary of the
Company since January 1, 2006 has been terminated or expired, except where
any such termination or expiration would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  None of such subsidiaries is in breach or
violation of or in default under any such investment advisory agreement or
distribution agreement, with such exceptions individually or in the aggregate
as would not reasonably be expected to have a Material Adverse Effect.  No subsidiary of the Company is serving or
acting as an investment adviser to any person except pursuant to an agreement
to which such subsidiary is a party and which is in full force and effect,
other than any agreement the non-existence of which would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.  The consummation of the
transaction contemplated herein will not constitute an “assignment” as such
term is defined in the Advisers Act and the 1934 Act.


 


(bb)  No Fiduciary Duties.  The Company acknowledges and agrees that
(i) the sale of the Shares pursuant to this Agreement is an arm’s-length
commercial transaction among the Company, on the one hand, and the Forward
Purchaser and the Manager, on the other hand, (ii) in connection with the
offering contemplated hereby and the process leading to such transaction, the
Manager is acting as agent for the Forward Purchaser in connection with sales
of the Shares sold on behalf of the Forward Purchaser and neither the Manager
nor the Forward


 


11














 


Purchaser nor any of their
affiliates is an agent or fiduciary of the Company, or its stockholders,
creditors, employees or any other party, (iii) the Manager has not assumed
and will not assume 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 the Manager has advised or is currently
advising the Company on other matters) and the Manager has no obligation to the
Company with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement, (iv) the Manager and its affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Company, and (v) the Manager has not provided any
legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.


 


(cc)  Internal Control over Financial Reporting.  The Company maintains a system of internal
control over financial reporting (as such term is defined in Rule 13a-15(f) of
the 1934 Act Regulations) that complies with the requirements of the 1934 Act
and the 1934 Act Regulations and that has been designed by the Company’s
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 generally accepted accounting principles.  The Company’s internal control over financial
reporting is effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting.  Since the date of the latest audited
financial statements included or incorporated by reference in the General
Disclosure Package and the Prospectus, there has been 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.


 


(dd)  Disclosure Controls and Procedures.  The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) of the 1934 Act
Regulations) that comply with the requirements of the 1934 Act and the 1934 Act
Regulations; 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 Company’s principal executive officer and principal
financial officer by others within those entities; and such disclosure controls
and procedures are effective.


 


(ee)  No Stop Order or Cease-and-Desist
Proceeding.  The Registration
Statement is not the subject of a pending proceeding or examination under Section 8(d) or
8(e) of the 1933 Act, and the Company is not the subject of a pending
proceeding under Section 8A of the 1933 Act in connection with the
offering of the Securities.


 


(ff)  Actively-Traded Security.  The Common Stock is an “actively traded
security” exempted from the requirements of Rule 101 of Regulation M under
the 1934 Act by subsection (c)(1) of such rule.


 


(gg)  No Other At-The-Market Offerings.  Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, the Company has
not entered into any other sales agency agreements or other similar
arrangements with any agent or any other


 


12

















 


representative in respect of
at the market offerings of the Shares in accordance with Rule 415(a)(4) of
the 1933 Act Regulations.


 


(hh)  No Stabilization or Manipulation.  The Company has not taken, directly or
indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares.


 


(ii) 
No Commissions.  There is no
broker, finder or other party that is entitled to receive from the Company any
brokerage or finder’s fee or other fee or commission as a result of any
transactions contemplated by this Agreement.


 


(jj)  Deemed Representation.  Any certificate signed by any officer of the
Company delivered to the Manager or to counsel for the Manager pursuant to or
in connection with this Agreement shall be deemed a representation and warranty
by the Company to the Manager as to the matters covered thereby.


 


Section 2.  Sale and Delivery of Shares.


 


(a) 
Subject to the terms and conditions set forth herein, the Manager agrees to use
its reasonable efforts to sell the Shares as sales agent for the Forward
Purchaser in the manner contemplated by the General Disclosure Package.


 


(b) 
The Shares are to be sold on a daily basis or otherwise as shall be agreed to
by the Company, the Forward Purchaser and the Manager on any day that is a
trading day for the NYSE (other than a day on which the NYSE is scheduled to
close prior to its regular weekday closing time, each, a “Trading Day”)
that the Company has satisfied its obligations under Section 4 of this
Agreement and that the Company has instructed the Manager to make such
sales.  On any Trading Day, the Company,
in consultation with the Forward Purchaser and the Manager, may instruct the
Manager by telephone (confirmed promptly by telecopy or email, which
confirmation will be promptly acknowledged by the Manager) as to the maximum
amount of Shares to be sold by the Manager on such day (in any event not in
excess of the amount then available for sale under the Prospectus and the
currently effective Registration Statement) and the minimum price per Share at
which such Shares may be sold.  Subject
to the terms and conditions hereof, the Manager shall use its commercially reasonable
efforts to sell as sales agent for the Forward Purchaser all of the Shares so
designated by the Company.  The Company
and the Manager each acknowledge and agree that (A) there can be no
assurance that the Manager will be successful in selling the Shares, (B) the
Manager will incur no liability or obligation to the Company or any other
person or entity if it does not sell Shares for any reason other than a failure
by the Manager to use its commercially reasonable efforts consistent with its
normal trading and sales practices and applicable law and regulations to sell
such Shares as required by this Agreement, and (C) the Manager shall be
under no obligation to purchase Shares on a principal basis.


 


(c) 
Notwithstanding the foregoing, the Company shall not authorize the sale of, and
the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Shares (i) at a price lower than the minimum price therefor
authorized from time to time, or (ii)


 


13

















 


having an aggregate offering
price in excess of the aggregate offering price of Shares authorized from time
to time to be issued and sold under this Agreement, in each case, by the
Company’s board of directors, or a duly authorized committee thereof, and
notified to the Manager in writing.  In
addition, the Company or the Manager may, upon notice to the other party hereto
by telephone (confirmed promptly by telecopy or email, which confirmation will be
promptly acknowledged), suspend the offering of the Shares for any reason and
at any time; provided, however, that such suspension shall not
affect or impair the parties’ respective obligations with respect to the Shares
sold hereunder prior to the giving of such notice.  Under no circumstances shall the aggregate
offering price of Shares sold pursuant to this Agreement exceed the aggregate
offering price of Shares set forth in the “Introductory”
paragraph of this Agreement or the aggregate offering price of Common Stock
available for sale under the currently effective Registration Statement.  Notwithstanding any of the provisions of this
Agreement, in the event that either (i) the Forward Purchaser is unable to
borrow and deliver any Shares for sale under this Agreement or (ii) in the
sole judgment of the Forward Purchaser, it is either impracticable to do so or
the Forward Purchaser would incur a stock loan cost that is equal to or greater
than 75 basis points per annum to do so, then the Manager shall only be
required to sell on behalf of the Forward Purchaser the aggregate number of
Shares that the Forward Purchaser is able to, and that it is practicable to, so borrow below such cost.


 


(d) 
If either party reasonably believes that the exemptive provisions set forth in Rule 101(c)(1) of
Regulation M under the 1934 Act are not satisfied with respect to the Company
or the Shares, it shall promptly notify the other party and sales of Shares
under this Agreement shall be suspended until that or other exemptive
provisions have been satisfied in the judgment of each party.


 


(e) 
The Manager shall not make any sales of Shares on behalf of the Forward
Purchaser other than by means of ordinary brokers’ transactions in accordance
with Rule 153of the 1933 Act Regulations.


 


(f) 
The gross sales price of any Shares sold pursuant to this Agreement shall be
the market or other price agreed to by the Company and the Manager for Shares
sold by the Manager under this Agreement at the time of such sale.  The compensation payable to the Manager for
sales of Shares shall be deemed to equal the difference between such gross
proceeds and the amount payable by the Forward Purchaser to the Company under
the Confirmation(s), assuming full physical settlement of the Confirmation(s) based
on the Initial Forward Price (as such term is defined in the
Confirmation(s)).  The amount payable by
the Forward Purchaser to the Company under the Confirmation(s), assuming full
physical settlement of the Confirmation(s) based on the Initial Forward
Price, subject to the price adjustment and other provisions of the Confirmation(s) shall
constitute the net proceeds to the Company for such Shares (the “Net
Proceeds”).


 


(g) 
The Manager shall provide written confirmation to the Company following the
close of trading on the NYSE each day on which Shares are sold under this
Agreement setting forth the number of Shares sold on such day, the price or
prices at which such Shares were sold on such day, the aggregate gross sales
proceeds of the Shares, the Net Proceeds to the Company and the compensation
payable by the Company to the Manager with respect to such sales.


 


14

















 


(h) 
Settlement for sales of Shares pursuant to this Section 2 will occur on
the third business day that is also a Trading Day following the trade date on
which such sales are made, unless another date shall be agreed to by the
Company and the Manager (each such day, a “Settlement Date”).  On each Settlement Date, the Shares sold
through the Manager for settlement on such date shall be delivered by the
Forward Purchaser to the Manager.


 


(i) 
Notwithstanding any other provision of this Agreement, the Company and the
Manager agree that no sales of Shares shall take place, and the Company shall
not request the sale of any Shares that would be sold, and the Manager shall
not be obligated to sell, (A) during any period starting on the first day
of each fiscal quarter of the Company and ending on the day on which the
Company’s insider trading policy, as it exists on the date of the Agreement, does
not prohibit the purchases or sales of the Company’s Common Stock by its
officers or directors, or (B) during any other period in which the
Prospectus or any amendment or supplement thereto includes an untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.


 


(j) 
At each Applicable Time and on each Settlement Date, each date the Registration
Statement or the Prospectus shall be amended or supplemented (other than a
prospectus supplement to the Prospectus included as part of the Registration
Statement filed pursuant to Rule 424(b) of the 1933 Act Regulations
relating solely to the offering of securities other than the Shares) (a “Registration
Statement Amendment Date”) and each date the Company files an Annual Report
on Form 10-K or a Quarterly Report on Form 10-Q or an amendment to
any such document (a “Company Periodic Report Date”), the Company shall
be deemed to have affirmed each representation and warranty (except for the
representation and warranty in Section 1(l) hereof, which the Company
shall be deemed to have affirmed only at each Company Periodic Report Date) and
its compliance with each covenant and other agreement contained in this
Agreement (unless the Company shall have notified the Manager to the contrary
in writing).  The Company shall cause a
senior corporate officer of the Company from time to time designated by the
Company (which senior corporate officer shall initially be one of the senior
corporate officers specified in Exhibit C hereto) to respond via
electronic mail to a communication from the Manager in the form set forth in Exhibit C
hereto when, during the term of this Agreement, the Company shall have received
such a communication.  Any obligation of
the Manager to use its commercially reasonable efforts to sell the Shares on
behalf of the Forward Purchaser shall be subject to, as determined in the reasonable
discretion of the Manager, the continuing accuracy of the representations and
warranties of the Company, the compliance by the Company with each covenant
contained herein, the performance by the Company of its obligations hereunder
and the continuing satisfaction of the additional conditions specified in Section 4
of this Agreement.


 


Section 3.  Covenants of the Company.   The Company hereby covenants and agrees with
the Manager that:


 


(a) 
During the period beginning on the date hereof and ending on the date, as
determined in the reasonable discretion of the Manager, that a prospectus is no
longer required by law to be delivered in connection with the offering or sales
of the Shares by the Manager or any dealer (whether physically or through
compliance with Rule 153 or 172 of the 1933 Act


 


15

















 


Regulations, or in lieu
thereof, a notice referred to in Rule 173(a) of the 1933 Act
Regulations) (the “Prospectus Delivery Period”):


 


(i) 
the Company will notify the Manager promptly in writing of the time when any
subsequent amendment to the Registration Statement has become effective or any
amendment to the Registration Statement or any subsequent supplement to the
Prospectus has been filed;


 


(ii) 
the Company will prepare and file with the Commission any material required to
be filed with the Commission pursuant to Rule 433(d) of the 1933 Act
Regulations and any amendments or supplements to the Registration Statement or
the Prospectus that, in the reasonable judgment of the Company, may be
necessary or advisable in connection with the offering of the Shares by the
Manager;


 


(iii) 
the Company will comply with Rule 430B; provided, however,
that the Company will not file any amendment to the Registration Statement or
supplement to the Prospectus unless a copy thereof has been submitted to the
Manager a reasonable period of time before filing with the Commission or if the
Manager reasonably objects to such filing in writing, in each case excluding an
amendment by incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act.


 


(iv) 
the Company will 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, 14 or 15 of the 1934 Act and will advise the
Manager of any such filing;


 


(v) 
the Company will furnish to the Manager at the time of filing thereof, a copy
of any document that upon filing is deemed to be incorporated by reference in
the Registration Statement or the Prospectus; and


 


(vi) 
the Company will cause each amendment or supplement to the Prospectus to be
filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of
the 1933 Act Regulations or, in the case of any document to be incorporated
therein by reference, to be filed with the Commission as required pursuant to
the 1934 Act, within the prescribed time period.


 


(b) 
The Company shall pay the required Commission filing fees relating to the
Shares within the time required by Rule 456(b)(1)(i) of the 1933 Act
Regulations without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the 1933 Act Regulations.


 


(c) 
The Company will promptly advise the Manager of the receipt of any comments of
or request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus, including the documents incorporated
by reference therein, or for additional or supplemental information with
respect thereto or of notice of institution of proceedings for the entry of a
stop order suspending the effectiveness of the Registration Statement by the
Commission or of any examination pursuant to Section 8(e) of the


 


16

















 


1933 Act concerning the
Registration Statement or of any order or notice preventing or suspending the
use of the Registration Statement, any preliminary prospectus or the
Prospectus, or of any proceedings to remove, suspend or terminate from listing
or quotation the Common Stock from any securities exchange upon which it is
listed for trading or included or designated for quotation, or of the
threatening or initiation of any proceedings for any of such purposes.  The Company shall use its best efforts to
prevent the issuance of any such stop order or notice of prevention or
suspension of such use.  If the
Commission shall enter any such stop order or issue any such notice at any
time, the Company will use its best efforts to obtain the lifting or reversal
of such order or notice at the earliest possible moment, or will file an
amendment to the Registration Statement or a new registration statement in a
form satisfactory to the Manager and use its best efforts to have such
amendment or new registration statement become effective as soon as
practicable.


 


(d) 
The Company will make available to the Manager and from time to time furnish to
the Manager, at the Company’s expense, copies of the Prospectus (or the
Prospectus as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the Registration
Statement) in such quantities and at such locations as the Manager may
reasonably request for the purposes contemplated by the 1933 Act.


 


(e) 
The Company will promptly notify the Manager to suspend the offering of Shares
upon the happening of any event known to the Company during the Prospectus
Delivery Period or otherwise prior to the final Settlement Date which, in the
reasonable judgment of the Company, would require the making of any change in
the Registration Statement or in the Prospectus then being used, or in the
information incorporated by reference therein, so that the Registration
Statement and the Prospectus would not include an untrue statement of 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. 
During such time period, the Company will prepare and furnish, at the
Company’s expense, to the Manager promptly such amendments or supplements to
such Registration Statement and Prospectus as may be necessary to reflect any
such change and will furnish the Manager with a copy of such proposed amendment
or supplement before filing any such amendment or supplement with the
Commission.  If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or occurs an event
or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration
Statement (or any other registration statement relating to the Shares) or the
Prospectus or any preliminary prospectus or included or would include an untrue
statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, the Company
will promptly notify the Manager and will promptly amend or supplement, at its
own expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.


 


(f) 
The Company will furnish such information as may be required and otherwise will
cooperate in qualifying the Shares for offering and sale under the securities
or blue sky laws of such jurisdictions as the Manager may designate and to
maintain such qualifications in effect so long as required for the distribution
of the Shares; provided that the Company shall not be required to
qualify as a foreign corporation or to consent to the service of process under
the laws


 


17

















 


of any such jurisdiction
(except service of process with respect to the offering and sale of the
Shares).  The Company will promptly
advise the Manager of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.


 


(g) 
Prior to the final Settlement Date, the Company will furnish to the Manager (i) copies
of any reports or other communications which the Company shall send directly to
its stockholders or shall from time to time publish or publicly disseminate, (ii) copies
of all annual, quarterly and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar form as may be designated by the
Commission, (iii) copies of any financial statements or reports filed with
any national securities exchange on which any class of securities of the
Company is listed, and (iv) such other information as the Manager may
reasonably request regarding the Company, in each case as soon as such reports,
communications, documents or information becomes available.  Where in any part of this document there is
an obligation on the part of the Company to deliver a document to the Manager,
such obligation shall be deemed satisfied if such document shall have been
filed on the Commission’s EDGAR system.


 


(h) 
The Company will make generally available to its stockholders as soon as
practicable, and in the manner contemplated by Rule 158 of the 1933 Act
Regulations but in any event not later than 15 months after the end of the
Company’s current fiscal quarter, an earnings statement (which need not be
audited) covering a 12 month period beginning after the date upon which a
prospectus supplement is filed pursuant to Rule 424(b) of the 1933
Act Regulations that shall satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 of the 1933 Act Regulations.


 


(i) 
Whether or not the transactions contemplated hereunder are consummated or this
Agreement is terminated, the Company will pay all of its costs, expenses, fees
and taxes incident to the performance of its obligations hereunder, including,
but not limited to, such costs, expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, the Prospectus, each
prospectus supplement filed by the Company in connection with the offering and
sale of Shares by the Manager under this Agreement and any amendments or
supplements thereto and the printing and furnishing of copies of each thereof
to the Manager (including costs of mailing and shipment), (ii) the
producing, word processing and/or printing of this Agreement, the
Confirmation(s), any power of attorney and any closing documents (including
compilations thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Manager (including costs of mailing and
shipment), (iii) the qualification of the Shares for offering and sale
under state laws and the determination of their eligibility for investment
under state law as aforesaid (including the reasonable legal fees and filing
fees and other disbursements of counsel for the Manager) and the preparation,
printing and furnishing of copies of any blue sky surveys to the Manager, (iv) the
listing of the Settlement Shares on the NYSE, (v) any filing for review of
the public offering of the Shares by FINRA, (vi) the fees and
disbursements of the Company’s counsel and accountants, (vii) the
performance of the Company’s other obligations hereunder, (viii) the costs
and expenses (including without limitation any damages or other amounts payable
in connection with legal or contractual liability) associated with the
reforming of any contracts for sale of the Shares made by the Manager caused by
a breach of the representation contained in the first paragraph of Section 1(e),
and (ix) the registration, issue, sale and delivery of the Settlement
Shares.  The 


 


18

















 


Manager will pay its own
out-of-pocket costs and expenses incurred in connection with entering into this
Agreement and the transactions contemplated by this Agreement, including,
without limitation, travel, reproduction, printing and similar expenses as well
as the fees and disbursements of its legal counsel.


 


(j) 
The Company will use the Net Proceeds from the sale of the Shares in the manner
set forth in the Prospectus.


 


(k) 
The Company will not sell, offer or agree to sell, contract to sell, pledge,
register, grant any option to purchase or otherwise dispose of, directly or
indirectly, any shares of capital stock or securities convertible into or
exchangeable, exercisable or redeemable for capital stock or warrants or other
rights to purchase capital stock, except (i) for the registration of the
Shares and the sales of Shares through the Manager pursuant to this Agreement, (ii) for
shares of Common Stock issued pursuant to existing options, employee benefit
agreements or incentive stock or director stock unit plans, (iii) any
shares of Common Stock or other securities issued as consideration for
investments in or acquisitions of entities involved in investment advisory or
investment management activities or other financial services related business,
or (iv) any filing under the 1933 Act relating to any shares of Common
Stock on Form S-8 or any issuances of Common Stock thereunder, without (a) giving
the Manager at least three business days’ prior written notice specifying the
nature of the proposed sale and the date of such proposed sale and (b) the
Manager suspending activity under this program for such period of time as
requested by the Company or as deemed appropriate by the Manager in light of
the proposed sale.


 


(l) 
At any time during the term of this Agreement, the Company will advise the
Manager immediately after it shall have received notice or obtain knowledge
thereof, of (x) any information or fact that, in the opinion of counsel to
the Company, would alter or affect, in any material respect, any opinion,
certificate, letter or other document provided to the Manager pursuant to Section 4
of this Agreement or any of the representations or warranties made pursuant to Section 1
of this Agreement or (y) any non-compliance or imminent non-compliance by
the Company with any of its covenants or obligations hereunder in any material
respect.


 


(m) 
Upon commencement of the offering of the Shares under this Agreement, on each
Monday during the term of this Agreement and promptly after each Registration
Statement Amendment Date, each Company Periodic Report Date, and each date on
which a current report on Form 8-K shall be furnished by the Company under
Item 2.02 of such form in respect of a public disclosure or material non-public
information regarding the Company’s results of operations or financial
condition for a completed quarterly or annual fiscal period (a “Company
Earnings Report Date”), and on such other dates as the Manager shall
reasonably request, the Company will furnish or cause to be furnished forthwith
to the Manager a certificate dated the date of effectiveness of such amendment,
the date of filing with the Commission of such supplement or other document or
the date of such request, as the case may be, in a form satisfactory to the
Manager to the effect that the statements contained in the certificate referred
to in Section 4(e) of this Agreement which were last furnished to the
Manager are true and correct at the time of such amendment, supplement or
filing, as the case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 4(e), but


 


19

















 


modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented, or to the document incorporated by reference into the Prospectus,
to the time of delivery of such certificate. 
As used in this paragraph, to the extent there shall be an Applicable
Time on or following the dates referred to above, promptly shall be deemed to
be such Applicable Time.


 


(n) 
Upon commencement of the offering of the Shares under this Agreement and
promptly after each Registration Statement Amendment Date, each Company
Periodic Report Date and each Company Earnings Report Date, on such other dates
as the Manager shall reasonably request, and on each Monday during the period
starting on the 15th calendar day of the last month of each fiscal quarter of
the Company and ending on the last calendar day of such month, the Company will
furnish or cause to be furnished forthwith to the Manager and to counsel to the
Manager written opinions and negative assurance letters of Ropes &
Gray LLP, dated the date of effectiveness of such amendment, the date of filing
with the Commission of such supplement or other document or the date of such
request, as the case may be, in a form and substance satisfactory to the
Manager and its counsel, of the same tenor as the opinions and negative
assurance letters referred to in Section 4(c) of this Agreement, but
modified as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented, or to the document incorporated by
reference into the Prospectus, to the time of delivery of such opinion.  As used in this paragraph, to the extent
there shall be an Applicable Time on or following the dates referred to above,
promptly shall be deemed to be such Applicable Time.


 


(o) 
Upon commencement of the offering of the Shares under this Agreement and
promptly after each Registration Statement Amendment Date, each Company
Periodic Report Date and each Company Earnings Report Date, on such other dates
as the Manager shall reasonably request, and on each Monday during the period
starting on the 15th calendar day of the last month of each fiscal quarter of the
Company and ending on the last calendar day of such month, the Company will
cause PricewaterhouseCoopers LLP to furnish to the Manager a letter, dated the
date of effectiveness of such amendment, the date of filing of such supplement
or other document with the Commission or the date of such request, as the case
may be, in form satisfactory to the Manager and its counsel, of the same tenor
as the letter referred to in Section 4(d) hereof, but modified as
necessary to relate to the Registration Statement and the Prospectus, as
amended and supplemented, or to the document incorporated by reference into the
Prospectus, to the date of such letter. 
As used in this paragraph, to the extent there shall be an Applicable Time
on or following the dates referred to above, promptly shall be deemed to be
such Applicable Time.


 


(p) 
The Company acknowledges that the Manager will be trading the Company’s Common
Stock for the Manager’s own account and for the account of its clients at the
same time as sales of Shares occur pursuant to this Agreement.


 


(q) 
If any condition set forth in Section 4(a) or 4(g) hereof shall
not have been satisfied on the applicable Settlement Date, the Manager, at the
direction of the Company, will offer to any person who has agreed to purchase
Shares pursuant to the offering contemplated by this Agreement as the result of
an offer to purchase solicited by the Manager the right to refuse to purchase
and pay for such Shares.


 


20

















 


(r) 
The Company will disclose in its Annual Reports on Form 10-K and Quarterly
Reports on Form 10-Q, as applicable, the number of Shares sold through the
Manager under this Agreement, the Net Proceeds from such sales and the
compensation deemed paid by the Company with respect to sales of Shares
pursuant to this Agreement during the relevant period.


 


(s) 
The Company will use its best efforts to cause the Settlement Shares to be
listed on the NYSE and to maintain such listing and to file with the NYSE all
documents and notices required by the NYSE of companies that have securities
that are listed on the NYSE.


 


(t) 
The Company will not (i) take, directly or indirectly, any action designed
to stabilize or manipulate the price of any security of the Company, or which
may cause or result in, or which might in the future reasonably be expected to
cause or result in, the stabilization or manipulation of the price of any
security of the Company, to facilitate the sale or resale of any of the Shares,
(ii) bid for or purchase, or pay any person (other than as contemplated by
the provisions of this Agreement) any compensation for, soliciting purchases of
the Shares, or (iii) pay or agree to pay to any person any compensation
for soliciting any order to purchase any security that is a “reference security”
with respect to the Common Stock of the Company (within the meaning of
Regulation M under the 1934 Act) other than as contemplated by the provisions
of this Agreement, in each case, during any “restricted period” within the
meaning of Regulation M under the 1934 Act.


 


(u) 
The Company will comply with all of the provisions of any undertakings in the
Registration Statement.


 


(v) 
The Company will cooperate timely with any reasonable due diligence review
conducted by the Manager or its counsel from time to time in connection with
the transactions contemplated hereby, including, without limitation, providing
information and making available documents and senior corporate officers,
during regular business hours and at the Company’s principal offices, at such
times as the Manager may reasonably request. 
If the Manager shall so request of one of the senior corporate officers
of the Company specified in Exhibit C by 3:00 p.m. Eastern
Time on any business day, the Company shall either (i) make available one
or more senior corporate officers of the Company for interview due diligence at
9:00 a.m. Eastern Time on the next following business day or (ii) direct
the Manager to cease offers and sales of the Shares until such time as such
senior corporate officer or officers of the Company shall be made available for
such purposes.


 


(w) 
The Company represents and agrees that, unless it obtains the prior consent of
the Manager, it has not made and will not make any offer relating to the Shares
that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, whether or
not required to be filed with the Commission. 
Any such free writing prospectus consented to by the Company and the
Manager is hereinafter referred to as a “Permitted Free Writing Prospectus.”  The Company represents that it has treated or
agrees that it will treat each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and record keeping.


 


21














 


(x)  The Company agrees that it will not claim that the Manager
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.


 


Section 4.  Conditions of
Manager’s Obligations.  The
obligations of the Manager hereunder are subject to (i) the accuracy of
the representations and warranties on the part of the Company on the date
hereof and as of each Registration Statement Amendment Date, Company Earnings
Report Date, Company Periodic Report Date, Applicable Time and Settlement Date,
(ii) the performance by the Company of its obligations hereunder and (iii) the
following additional conditions precedent:


 


(a)  (i) No stop order with respect to the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or the
1933 Act Regulations or proceedings initiated under Section 8(d) or 8(e) of
the 1933 Act and no order directed at any document incorporated by reference
therein and no order preventing or suspending the use of the Prospectus has
been issued by the Commission, and no suspension of the qualification of the
Shares for offering or sale in any jurisdiction, or to the knowledge of the
Company or the Manager of the initiation or threatening of any proceedings for
any of such purposes, has occurred; (ii) the Registration Statement and
all amendments thereto, or modifications thereof, if any, shall 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; (iii) the Prospectus and all amendments or supplements
thereto, or modifications thereof, if any, and the General Disclosure Package
shall 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 are made, not
misleading, (iv) the Company shall have filed the Prospectus, and any
amendments and supplements thereto, with the Commission (including the
information required by Rule 430B) in the manner and within the time
period required by the 1933 Act and the 1933 Act Regulations, and any
post-effective amendment thereto containing the information required by Rule 430B
shall have become effective, and (v) all material required to be filed by
the Company pursuant to Rule 433(d) shall have been filed with the
Commission within the applicable time periods prescribed for such filings under
Rule 433.


 


(b)  In the judgment of the Manager, there shall not have occurred
any Material Adverse Effect.


 


(c)  The Company shall cause to be furnished to the Manager, on
every date specified in Section 3(n) hereof, the opinion and negative
assurance letter of Ropes & Gray LLP addressed to the Manager, dated
as of such date, in form satisfactory to the Manager and its counsel,
substantially in the form of Exhibit B-1 and Exhibit B-2
attached hereto.


 


(d)  The Company shall cause to be furnished to the Manager, on
every date specified in Section 3(o) hereof, from
PricewaterhouseCoopers LLP letters dated the date of delivery thereof and
addressed to the Manager in form and substance satisfactory to the Manager and
its counsel, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements of the


 


22

















 


Company
and its subsidiaries included or incorporated by reference in the Registration
Statement.


 


(e)  The Company shall furnish to the Manager, on each date
specified in Section 3(m) hereof, a certificate of two of its
executive officers to the effect that (i) the representations and
warranties of the Company as set forth in this Agreement are true and correct
as of the date of such certificate (the “Certificate Date”), (ii) the
Company shall have performed such of its obligations under this Agreement as
are to be performed at or before each such Certificate Date, and (iii) the
conditions set forth in paragraphs (a) and (b) of this Section 4
have been met.


 


(f)  On the date hereof, the Manager shall have received the
opinion of Cleary Gottlieb Steen & Hamilton LLP dated the date hereof
and addressed to the Manager in form and substance satisfactory to the Manager.


 


(g)  All filings with the Commission required by Rule 424 of
the 1933 Act Regulations to have been filed by each Applicable Time or related
Settlement Date, as the case may be, shall have been made within the applicable
time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).


 


(h)  The Settlement Shares shall have been approved for listing on
the NYSE, subject to official notice of issuance.


 


(i)  The Company shall have furnished to the Manager such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement, the Prospectus and the General Disclosure
Package as of each Settlement Date as the Manager may reasonably request.


 


(j)  The Company shall have paid the required Commission filing
fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of
the 1933 Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act
Regulations.


 


(k)  FINRA shall not have raised any objection with respect to the
fairness and reasonableness of the terms and arrangements under this Agreement.


 


(l)  No amendment or supplement to the Registration Statement or
Prospectus, including documents deemed to be incorporated by reference therein,
shall be filed to which the Manager objects in writing.


 


(m)  Since the later of the time of execution of this Agreement
and the most recent Applicable Time, there shall not have occurred any
downgrading, nor shall any notice or announcement have been given or made of (i) any
intended or potential downgrading or (ii) any review or possible change
that does not indicate an improvement, in the rating accorded any securities of
or guaranteed by the Company by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) of the 1933
Act Regulations.


 


23

















 


Section 5.  Indemnification.


 


(a)  Indemnification of Manager and Forward Purchaser.  The Company agrees to indemnify and hold
harmless the Manager and the Forward Purchaser, each of their directors,
officers, employees and agents, and each person, if any, who controls the
Manager or the Forward Purchaser within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act:


 


(i)  against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained in
any Issuer Free Writing Prospectus, the General Disclosure Package or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;


 


(ii)  against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to Section 5(d) below)
any such settlement is effected with the written consent of the Company; and


 


(iii)  against any and all expense whatsoever,
as incurred (including the reasonable fees and disbursements of counsel chosen
by the Manager), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii) above;


 


provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by the Manager expressly for use in the
Registration Statement (or any amendment thereto) or any Issuer Free Writing
Prospectus, the General Disclosure Package or the Prospectus (or any amendment
or supplement thereto).


 


(b)  Indemnification of Company, Directors and Officers.  The Manager and the Forward Purchaser
severally and not jointly agree to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the


 


24

















 


indemnity
contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
Issuer Free Writing Prospectus, the General Disclosure Package or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Manager
expressly for use therein.


 


(c)  Actions against Parties; Notification.  Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement.  In the case of parties
indemnified pursuant to Section 5(a) above, counsel to the
indemnified parties shall be selected by the Manager, and, in the case of
parties indemnified pursuant to Section 5(b) above, counsel to the
indemnified parties shall be selected by the Company.  An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party.  In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.  No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 5 or Section 6
hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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)  Settlement without Consent if Failure to Reimburse.  If at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 5(a)(ii) 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 have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.  Notwithstanding the
immediately preceding 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, an indemnifying party shall not be liable for any
settlement of the nature contemplated by Section 5(a)(ii) effected
without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the


 


25

















 


indemnified
party substantiating the unpaid balance as unreasonable, in each case prior to
the date of such settlement.


 


(e)  Additional Liability. 
The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to the directors and officers of
the Manager and to each person, if any, who controls the Manager within the
meaning of the 1933 Act and each broker-dealer affiliate of the Manager; and
the obligations of the Manager under this Section 5 shall be in addition
to any liability which the Manager may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company and
to each person, if any, who controls the Company within the meaning of the 1933
Act.


 


Section 6.  Contribution.  If the indemnification provided for in Section 5
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Manager and the Forward Purchaser on the other hand from the
offering of the Shares pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Manager and the Forward Purchaser on the
other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.


 


The
relative benefits received by the Company on the one hand and the Forward
Purchaser and the Manager on the other hand in connection with the offering of
the Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as (i) the Net Proceeds from the offering of the
Shares pursuant to this Agreement (before deducting expenses) received by the
Company (which shall be deemed to include the proceeds that would be received
by the Company upon physical settlement of the Confirmation(s) assuming
that the aggregate amount payable by the Forward Purchaser under the
Confirmation(s) is equal to the aggregate amount of the Net Proceeds
realized upon the sale of the Shares) and (ii) the aggregate proceeds
received by the Forward Purchaser and the Manager from the sale of the Shares
less the aggregate Net Proceeds.


 


The
relative fault of the Company on the one hand and the Forward Purchaser and the
Manager on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Forward Purchaser and the Manager and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.


 


The
Company and the Manager agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to


 


26

















 


above in this Section 6.  The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 6 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.


 


Notwithstanding
the provisions of this Section 6, the Manager shall not be required to
contribute any amount in excess of the total compensation received by the
Manager in connection with the sale of Shares on behalf of the Forward
Purchaser.


 


No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.


 


For
purposes of this Section 6, the person, if any, who controls the Manager
within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act and the Manager’s Affiliates shall have the same rights to
contribution as such Manager, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Company.


 


Section 7.  Representations,
Warranties and Agreements to Survive Delivery.  The respective indemnities, agreements,
representations, warranties and other statements of the Company and the
Manager, 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 Manager or any controlling person of the
Manager, or the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the Shares.


 


Section 8.  Termination.


 


(a)  The Company shall have the right, by giving written notice as
hereinafter specified, to terminate this Agreement in its sole discretion at
any time.  Any such termination shall be
without liability of any party to any other party except that (i) if
Shares have been sold through the Manager, then Section 3(q) shall
remain in full force and effect notwithstanding such termination, (ii) with
respect to any pending sale through the Manager, the obligations of the
Company, including in respect of compensation of the Manager, shall remain in
full force and effect notwithstanding such termination and (iii) the
provisions of Section 1, Section 3(i), Section 5 and Section 6
of this Agreement shall remain in full force and effect notwithstanding such
termination.


 


(b)  The Manager shall have the right, by giving written notice as
hereinafter specified, to terminate this Agreement in its sole discretion at
any time.  Any such termination shall be
without liability of any party to any other party except that the provisions of
Section 1, 3(i), Section 5 and Section 6 of this Agreement shall
remain in full force and effect notwithstanding such termination.


 


27

















 


(c)  This Agreement shall remain in full force and effect unless
terminated pursuant to Section 8(a) or (b) above or otherwise by
mutual agreement of the parties or upon settlement of the sale of all the
Shares in the aggregate in one or more offerings; provided that any such
termination by mutual agreement or pursuant to this clause (c) shall
in all cases be deemed to provide that Section 1, Section 3(i), Section 5
and Section 6 of this Agreement shall remain in full force and effect.


 


(d)  Any termination of this Agreement shall be effective on the
date specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt of
such notice by the Manager or the Company, as the case may be.  If such termination shall occur prior to the
Settlement Date for any sale of Shares, such sale shall settle in accordance
with the provisions of Section 2(h) hereof.


 


Section 9.  Notices.  Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing and delivered
by hand, overnight courier, mail or facsimile and, if to the Manager, shall be
sufficient in all respects if delivered or sent to Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant
Park, New York, NY 10036, Attention:  ECM
Legal; if to the Company, it shall be sufficient in all respects if delivered
or sent to the Company at the offices of the Company at 600 Hale Street, Prides
Crossing, MA 01965, Attention:  Chief
Financial Officer.  Each party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.


 


Section 10.  Parties.  The Agreement herein set forth has been and
is made solely for the benefit of the Manager, the Forward Purchaser and the
Company and to the extent provided in Section 5 hereof the controlling
persons, directors and officers referred to in such section, and their
respective successors, assigns, heirs, personal representatives and executors
and administrators.  No other person,
partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Manager) shall acquire or have any right under or by
virtue of this Agreement.


 


Section 11.  Adjustments
For Stock Splits.  The parties
acknowledge and agree that all share related numbers contained in this
Agreement shall be adjusted to take into account any stock split effected with
respect to the Shares.


 


Section 12.  Counterparts.  This Agreement may be executed by any one or
more of the parties hereto and thereto 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.  This Agreement may be delivered by any party
by facsimile or other electronic transmission.


 


Section 13.  Time of the
Essence.  Time shall be of the
essence of this Agreement.  As used
herein, the term “business day” shall mean any day when the Commission’s office
in Washington, D.C. is open for business.


 


Section 14.  Waiver of
Jury Trial.  The Company and the
Manager hereby irrevocably waive, to the fullest extent permitted by applicable
law, any and all right to jury trial


 


28

















 


by
jury in any legal proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.


 


Section 15.  Governing
Law.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAW.


 


Section 16.  Headings.  The Section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part
of this Agreement.


 


Section 17.  Successors
and Assigns.  This Agreement shall be
binding upon the Manager and the Company and their successors and assigns and
any successor or assign of any substantial portion of the Company’s and any of
the Manager’s respective businesses and/or assets.


 


Section 18.  Severability.  The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof.  If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.


 


Section 19.  Entire
Agreement.  This Agreement
constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof.


 


[Remainder of this page intentionally
left blank]


 


29

















 


If
the foregoing is in accordance with your understanding of our agreement, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement between the
Manager and the Company in accordance with its terms.


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Affiliated Managers
  Group, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John
  Kingston, III

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John Kingston, III

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice President,
  General Counsel and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted as of the date
  hereof:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Merrill Lynch &
  Co.

  	
   

  	
   

  
	
  Merrill Lynch, Pierce,
  Fenner & Smith

  	
   

  	
   

  
	
  Incorporated

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John R. Erickson

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John R. Erickson

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Michael Voris

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michael Voris

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Principal