exv10w1






EXECUTION VERSION




Gartner, Inc.



Common Stock


                    


Underwriting Agreement



December 9, 2009                    




Goldman, Sachs & Co.,

85 Broad Street,

New York, New York 10004

Ladies and Gentlemen:




          Certain stockholders named in Schedule I hereto (the “Selling Stockholders”) of Gartner, Inc.,
a Delaware corporation (the “Company”), propose, subject to the terms and conditions stated herein,
to sell to Goldman, Sachs & Co. (the “Underwriter”) an aggregate of 7,960,641 shares (the
“Securities”) of Common Stock, par value $0.0005 per share (“Stock”) of the Company.



     1. (A) The Company represents and warrants to, and agrees with, the Underwriter that:




     (a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-163607) in respect
of the Securities has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing; and no
stop order suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or, to the Company’s
knowledge, threatened by the Commission, and no notice of objection of the Commission to
the use of such registration statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act has been received by the Company (the base prospectus relating
to the Securities included in such registration statement is hereinafter called the “Base
Prospectus”; any preliminary prospectus relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the
various parts of such registration statement, including all exhibits thereto and including
any prospectus supplement relating to the Shares that is filed with the Commission and
deemed by virtue of Rule 430B to be part of such registration statement,



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each as amended at the time such part of the registration statement became effective,
are hereinafter collectively called the “Registration Statement”; the form of the final
prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Base Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the Base Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any prospectus supplement relating
to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any
documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and incorporated therein, in each case after the date of the Base Prospectus, such
Preliminary Prospectus or the Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433
under the Act relating to the Securities is hereinafter called an “Issuer Free Writing
Prospectus”);




     (b) No order preventing or suspending the use of the Base Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and the Base Prospectus, at the
time of filing thereof, conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by Goldman, Sachs & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the preparation of the information
in the Base Prospectus and the Prospectus under the caption “Selling Stockholders;”




     (c) For the purposes of this Agreement, the “Applicable Time” is 5:30 p.m. (Eastern
time) on the date of this Agreement. The Base Prospectus as supplemented by the pricing
information listed on Schedule III (the “Pricing Information”), as of the Applicable Time,
did not include any untrue statement of a material fact or omit to state any material fact



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necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free Writing Prospectus listed
on Schedule II(a) hereto does not conflict with the information contained in the
Registration Statement, the Base Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Base Prospectus and
Pricing Information as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to statements or
omissions made in the Base Prospectus and an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by Goldman,
Sachs & Co. expressly for use therein or by a Selling Stockholder expressly for use in the
preparation of the information in the Base Prospectus and the Prospectus under the caption
“Selling Stockholders” and in the preparation of the first paragraph of the Issuer Free
Writing Prospectus listed on Schedule II(a);




     (d) The documents incorporated by reference in the Base Prospectus and the Prospectus,
when they became effective or were filed with the Commission, as the case may be, conformed
in all material respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
any further documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by Goldman, Sachs & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the preparation of the information
in the Base Prospectus and the Prospectus under the caption “Selling Stockholders;” and no
such documents were filed with the Commission since the Commission’s close of business on
the business day immediately prior to the date of this Agreement and prior to the execution
of this Agreement, except as set forth on Schedule II(b) hereto;



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     (e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to
each part of the Registration Statement and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by Goldman, Sachs & Co.
expressly for use therein or by a Selling Stockholder expressly for use in the preparation
of the information in the Registration Statement and the Prospectus under the caption
“Selling Stockholders;”




     (f) Each of the Company’s subsidiaries that have either (i) total assets that exceed
10 percent of the total assets of the Company and its subsidiaries, on a consolidated
basis, as of September 30, 2009, or (ii) total revenues that exceed 10 percent of the total
revenues of the Company and its subsidiaries, on a consolidated basis, for the year ended
December 31, 2008, is herein referred to as a “Subsidiary” and collectively as the
“Subsidiaries.” Neither the Company nor any of its Subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by reference in
the Base Prospectus any loss or interference with its business that is material to the
Company and its Subsidiaries, taken as a whole, from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in the
Base Prospectus; and, since the respective dates as of which information is given in the
Registration Statement and the Base Prospectus, there has not been any material change in
the capital stock or long term debt of the Company or any of its Subsidiaries or any
material adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its Subsidiaries, taken as a whole (a
“Material Adverse Effect”), otherwise than as set forth or contemplated in the Base
Prospectus;




     (g) The Company and its Subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as are
described in the Base Prospectus and the Prospectus or such as do not affect the value of



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such property and do not interfere with the use made and proposed to be made of such
property by the Company and its Subsidiaries, except for such defects and interferences as
would not have a Material Adverse Effect; and any real property and buildings held under
lease by the Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material to the Company and its
Subsidiaries, taken as a whole, and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and its Subsidiaries;




     (h) The Company and the Subsidiaries have been duly incorporated or formed, as the
case may be, and are validly existing as a corporation, limited liability company or
limited partnership, as the case may be, in good standing under the laws of each of their
respective jurisdiction of incorporation or organization, as the case may be, with power
and authority (corporate and other) to own their properties and conduct their business as
described in the Base Prospectus and the Prospectus, and have been duly qualified as a
foreign corporation, limited liability company or limited partnership, as the case may be,
for the transaction of business and are in good standing under the laws of each other
jurisdiction in which they own or lease properties or conduct any business so as to require
such qualification, or are subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction, except where the failure to be so
qualified or have such power or authority would not have a Material Adverse Effect;




     (i) The Company has an authorized capitalization as set forth in the Base Prospectus
and the Prospectus and all of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and non-assessable and conform in
all material respects to the description of the Stock contained in the Base Prospectus and
the Prospectus; and, other than as set forth in the Base Prospectus and the Prospectus, all
of the issued shares of capital stock of each Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and (except for directors’
qualifying shares) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;




     (j) The compliance by the Company with this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, (ii) the Certificate of



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Incorporation or By-laws of the Company or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties, except, with respect to clauses (i)
and (iii), as would not have a Material Adverse Effect; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement except such
as have been obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Securities by the Underwriter;




     (k) Neither the Company nor any of its Subsidiaries is in violation of its (i)
Certificate of Incorporation or Bylaws or (ii) in default in the performance or observance
of any obligation, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except, with respect to clause (ii), as
would not have Material Adverse Effect;




     (l) The statements set forth in the Base Prospectus and the Prospectus under the
caption “Description of Capital Stock”, insofar as they purport to constitute a summary of
the terms of the Stock and under the caption “Underwriting”, insofar as they purport to
describe the provisions of the laws and documents referred to therein, are accurate,
complete and fair in all material respects;




     (m) Other than as set forth in the Base Prospectus and the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its Subsidiaries
is a party or of which any property of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect; and, to the Company’s
knowledge, no such proceedings are threatened or contemplated by governmental authorities
or threatened by others;




     (n) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);




     (o) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was



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by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d)
of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163
under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under
the Act; and (B) at the earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;




     (p) KPMG LLP, who have certified certain financial statements of the Company and its
subsidiaries, and have audited the Company’s internal control over financial reporting and
management’s assessment thereof are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;




     (q) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and 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;




     (r) Since the date of the latest audited financial statements included or incorporated
by reference in the Base Prospectus 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; and




     (s) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective.



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          (B) The Selling Stockholders jointly represent and warrant to, and agree with, the Underwriter
and the Company that:




     (i) All consents, approvals, authorizations and orders necessary for the execution and
delivery by the Selling Stockholders of this Agreement, and for the sale and delivery of
the Securities to be sold by the Selling Stockholders hereunder, have been obtained; and
the Selling Stockholders have full right, power and authority to enter into this Agreement
and to sell, assign, transfer and deliver the Securities to be sold by the Selling
Stockholders hereunder;




     (ii) The sale of the Securities to be sold by the Selling Stockholders hereunder and
the compliance by the Selling Stockholders with all of the provisions of this Agreement and
the consummation of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation, in any material respect, of any of the terms or
provisions of, or constitute a material default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Selling
Stockholders are a party or by which the Selling Stockholders are bound or to which any of
the property or assets of the Selling Stockholders are subject, nor will such action result
in any violation of the provisions of the Certificate of Formation, Operating Agreement or
Amended and Restated Partnership Agreement, as applicable of each of the Selling
Stockholders or any material violation of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Selling Stockholders
or the property of the Selling Stockholders except in each case, such as will not have a
material adverse effect on each Selling Stockholders’ ability to consummate the
transactions contemplated herein;




     (iii) The Selling Stockholders have, and immediately prior to the Time of Delivery (as
defined in Section 4 hereof) the Selling Stockholders will have, good and valid title to
the Securities to be sold by the Selling Stockholders hereunder, free and clear of all
liens, encumbrances, equities or claims; and, upon delivery of such Securities and payment
therefor pursuant hereto, good and valid title to such Securities, free and clear of all
liens, encumbrances, equities or claims, will pass to the Underwriter;




     (iv) During the period beginning from the date hereof and continuing to and including
the date 60 days after the date of the Prospectus (the initial “Lock-Up Period”), not to
offer, sell contract to sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Securities, including but
not limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar



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securities (other than (i) the sales of Securities to be sold by the Selling
Stockholders hereunder or as described in the Base Prospectus and the Prospectus, (ii)
transfers of Securities to affiliates of the Selling Stockholders, provided that such
transfer does not result in a filing with the Commission during the Lock-Up Period and
provided further that in any such case, it shall be a condition to the transfer that the
transferee (if not already subject to this provision) execute an agreement stating that the
transferee is receiving and holding such Securities subject to the terms of this provision,
(iii) the exercise of an option or warrant or the conversion or exchange of convertible or
exchangeable securities, in each case outstanding as of the date of this Agreement or
described in the Base Prospectus and the Prospectus as being outstanding on or prior to the
Time of Delivery, (iv) as a bona fide gift or gifts (v) pursuant to the Selling
Stockholders’ 10b5-1 sales plan dated as of September 14, 2009, (vi) to any trust,
partnership or limited liability company for the direct or indirect benefit of the Selling
Stockholder, provided that such trust, partnership or limited liability company agrees to
be bound in writing by the restrictions set forth herein, and provided further that any
such transfer shall not involve a disposition for value, (vii) to any limited partner,
member or stockholder of the Selling Stockholders, provided that such transferee agrees to
be bound in writing by the restrictions set forth herein (vii) to a nominee or custodian of
a person or entity to whom a transfer would be permissible under clauses (i) through
(viii), and (ix) up to 380,850 shares of Stock that may be transferred or otherwise
disposed of for charitable purposes, without your prior written consent;




     (v) The Selling Stockholders have not taken and will not take, directly or indirectly,
any action which is designed to or which has constituted or which might reasonably be
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 Securities;




     (vi) To the extent that any statements or omissions made in the Registration
Statement, the Prospectus or any amendment or supplement thereto are made in reliance upon
and in conformity with written information furnished to the Company by the Selling
Stockholders expressly for use therein, the Base Prospectus and the Registration Statement
did, and the Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus, when they are filed with the Commission will conform in all
material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not misleading;
provided that it is understood and agreed that, for purposes of this Agreement, including
Section 9 hereof, the only



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such information furnished by such Selling Stockholder consists of the information in
the Prospectus under the caption “Selling Stockholders” and the information covered in the
first paragraph in the Issuer Free Writing Prospectus listed on Schedule II(a) insofar as
such information relates to such Selling Stockholder and the beneficial owners of such
Selling Stockholder; and




     (vii) In order to document the Underwriter’s compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect
to the transactions herein contemplated, such Selling Stockholder will deliver to you prior
to or at the Time of Delivery (as hereinafter defined) a properly completed and executed
United States Treasury Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof).



     2. Subject to the terms and conditions herein set forth, each of the Selling Stockholders
agree, jointly, to sell to the Underwriter, and the Underwriter agrees to purchase from each of the
Selling Stockholders, at a purchase price per share of $17.0625, the Securities to be sold by each
of the Selling Stockholders as set forth opposite their respective names in Schedule I hereto.



     3. Upon the authorization by the Selling Stockholders of the release of the Securities, the
Underwriter proposes to offer the Securities for sale upon the terms and conditions set forth in
the Prospectus.



     4. (a) The Underwriter hereunder shall acquire security entitlements with respect to the
Securities and in such authorized denominations and registered in such names as the Underwriter may
request upon at least forty-eight hours’ prior notice to the Selling Stockholders shall be
delivered by or on behalf of the Selling Stockholders to Goldman, Sachs & Co., through the
facilities of the Depository Trust Company (“DTC”), for the account of the Underwriter, against
payment by or on behalf of the Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Selling Stockholders to Goldman, Sachs &
Co. at least forty-eight hours in advance. Prior to the Time of Delivery (as defined below), the
Selling Stockholders shall deliver or cause to be delivered to the Company’s transfer agent
certificates representing Securities, with instructions to cancel such certificates and register
the Shares in the name of Cede & Co., as nominee of DTC, on the Time of Delivery. The time and
date of such delivery and payment shall be 10:30 a.m., New York City time, on December 14, 2009 or
such other time and date as Goldman, Sachs & Co. and the Selling Stockholders may agree upon in
writing. Such time and date for delivery of the Securities is herein called the “Time of Delivery”.



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     (b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriter pursuant to Section 8(j) hereof, will be
delivered at the offices of Latham & Watkins LLP, 885 Third Avenue, Suite 1000, New York, New York
10022 (the “Closing Location”), and the Securities will be delivered, all at the Time of Delivery.
A meeting will be held at the Closing Location at 5:00 p.m., New York City time, on the New York
Business Day next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.



     5. The Company agrees with the Underwriter:




     (a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement; to make no further amendment
or any supplement to the Registration Statement or the Prospectus prior to the last Time of
Delivery which shall be reasonably disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any amendment or supplement to the
Prospectus has been filed and to furnish you with copies thereof; to file promptly all other
material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the
Act; to file promptly all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of the Securities; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Base Prospectus or other prospectus in respect of the Securities, of any
notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing or
suspending the use of the Base Prospectus or other prospectus or suspending any such qualification,
to promptly use its reasonable best efforts to obtain the withdrawal of such order;



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and in the event of any such issuance of a notice of objection, promptly to take such steps
including, without limitation, amending the Registration Statement or filing a new registration
statement, at its own expense, as may be necessary to permit offers and sales of the Securities by
the Underwriter (references herein to the Registration Statement shall include any such amendment
or new registration statement);




     (b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus which shall be reasonably disapproved by you promptly after reasonable
notice thereof;




     (c) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction;




     (d) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriter with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to the Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case the Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of



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issue of the Prospectus, upon your request but at the expense of the Underwriter, to prepare
and deliver to the Underwriter as many written and electronic copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;




     (e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);




     (f) During the period beginning from the date hereof and continuing to and including the date
60 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of any
securities of the Company that are substantially similar to the Securities, including but not
limited to any options or warrants to purchase shares of Stock or any securities that are
convertible into or exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than (i) pursuant to employee incentive plans existing on
the date of this Agreement, (ii) upon the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement, or (iii) shares issued as consideration in
connection with acquisitions made by the Company, provided that no more than 10% of the number of
shares of Stock then outstanding are issued in connection with such acquisitions and provided,
further that, the recipients receiving Stock in connection with such acquisitions agree in writing
with the Underwriter to the restrictions of this Section 5(f) and represent to the Underwriter that
they have not transferred to another, in whole or in part, any economic consequence of ownership of
such shares of Stock prior to the consummation of such acquisition), without your prior written
consent and provided, further that such transfer of Stock does not result in a filing with the
Commission during the 60-day period following the date of the Prospectus; and




     (g) Upon request of the Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering
of the Securities (the “License”); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred.



     6.




     (a) The Company represents and agrees that, without the prior consent of Goldman, Sachs & Co.,
it has not made and will not make any offer relating to



13









 







the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under
the Act; the Underwriter represents and agrees that, without the prior consent of the Company and
Goldman, Sachs & Co., it has not made and will not make any offer relating to the Securities that
would constitute a free writing prospectus; any such free writing prospectus the use of which has
been consented to by the Company and Goldman, Sachs & Co. is listed on Schedule II(a) hereto;




     (b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and




     (c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Base Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to Goldman, Sachs & Co.
and, if requested by Goldman, Sachs & Co., will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, that this covenant shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by Goldman, Sachs & Co. expressly for use therein
or by a Selling Stockholder expressly for use in the preparation of the third paragraph of the
Issuer Free Writing Prospectus listed on Schedule II(a).



     7. The Company and each of the Selling Stockholders covenant and agree with one another and
with the Underwriter that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s counsel, one counsel for the Selling Stockholders and
the Company’s accountants in connection with the registration of the Securities under the Act and
all other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriter and dealers; (ii) the cost of printing or producing this
Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(c) hereof, including the fees and
disbursements of counsel for the Underwriter in connection with such qualification and in



14









 







connection with the Blue Sky survey; (iv) all fees and expenses in connection with listing the
Securities on the Exchange; (v) the cost of preparing the Securities; (vi) the cost and charges of
any transfer agent or registrar; and (vii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriter will pay all of its own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, any advertising expenses connected with
any offers they may make, and the lodging and travel expenses of the Underwriter in connection with
the road show (it being understood that as it relates to chartered aircraft, travel expenses of the
Underwriter shall be determined by the proportion the total representation the Underwriter presents
on such aircraft bears to the total number of other offering participants present on such
aircraft). The Selling Stockholders shall pay any transfer taxes payable in connection with their
respective sales of Securities to the Underwriter.



     8. The obligations of the Underwriter hereunder, as to the Securities to be delivered at the
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, in all material respects with respect to those representations and warranties not
already qualified by materiality, the condition that the Company shall have performed, in all
material respects, all of its obligations hereunder theretofore to be performed, and the following
additional conditions:




     (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission and no notice
of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable satisfaction;




     (b) Latham & Watkins, LLP, counsel for the Underwriter, shall have furnished to you such
written opinion or opinions, dated the Time of Delivery, in form and substance satisfactory to you,
and such counsel shall have received



15









 







such papers and information as they may reasonably request to enable them to pass upon such
matters;




     (c) Wilson Sonsini Goodrich & Rosati, counsel for the Company, shall have furnished to you
their written opinion, dated the Time of Delivery, in form and substance reasonably satisfactory to
you;.




     (d) Ropes & Gray LLP, counsel for each of the Selling Stockholders, shall have furnished to
you their written opinion with respect to each of the Selling Stockholders for whom they are acting
as counsel, dated the Time of Delivery, in form and substance reasonably satisfactory to you;




     (e) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, KPMG,
LLP shall have furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you;




     (f) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Base
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Base Prospectus, and
(ii) since the respective dates as of which information is given in the Base Prospectus there shall
not have been any change in the capital stock or long term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in the Base
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered at the Time of Delivery on the
terms and in the manner contemplated in the Prospectus;




     (g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s debt securities;




     (h) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities



16









 







generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading
in the Company’s securities on New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your
judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities being delivered at the Time of Delivery on the terms and in the manner
contemplated in the Prospectus;




     (i) The Company has obtained and delivered to the Underwriter executed copies of an agreement
from all executive officers and directors of the Company, substantially to the effect set forth in
Section 5(f) hereof in form and substance satisfactory to you; and




     (j) The Company and the Selling Stockholders shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of the Company and the Selling Stockholders,
respectively, reasonably satisfactory to you as to the accuracy of the representations and
warranties, in all material respects with respect to those representations and warranties not
already qualified by materiality, of the Company and the Selling Stockholders herein at and as of
such time, as to the performance, in all material respects, by the Company and the Selling
Stockholders of all of their respective obligations hereunder to be performed at or prior to such
time, and as to such other matters as you may reasonably request, and the Company shall have also
furnished or caused to be furnished certificates as to the matters set forth in subsections (a) and
(f) of this Section.



     9. (a) The Company will indemnify and hold harmless the Underwriter against any losses,
claims, damages or liabilities, joint or several, to which the Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Underwriter for any legal or other expenses reasonably incurred
by the Underwriter in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable in any such case to
the extent that



17









 







any such loss, claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by Goldman, Sachs & Co. expressly for use therein or by a
Selling Stockholder expressly for use in the preparation of the information in the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus under the caption
“Selling Stockholders” and in the preparation of the first paragraph of the Issuer Free Writing
Prospectus listed on Schedule II(a).




     (b) Each of the Selling Stockholders, severally and not jointly, will indemnify and hold
harmless the Underwriter and the Company against any losses, claims, damages or liabilities, joint
or several, to which the Underwriter and the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Prospectus, or any such amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein; and will reimburse
the Underwriter and the Company for any legal or other expenses reasonably incurred by the
Underwriter and the Company in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that such Selling Stockholder shall not be liable
in any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or the Prospectus, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by Goldman, Sachs & Co.
expressly for use therein; provided, further, that the liability of such Selling Stockholder
pursuant to this subsection (b) shall not exceed the product of the number of Securities sold by
such Selling Stockholder and the public offering price of the Securities as set forth in the
Prospectus. Such Selling Stockholder shall not be liable under this Section 9 to any indemnified
party regarding any settlement or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or



18









 







consent is consented to by such Selling Stockholder, which consent shall not be unreasonably
withheld.




     (c) The Underwriter will indemnify and hold harmless the Company and the Selling Stockholders
against any losses, claims, damages or liabilities to which the Company or the Selling Stockholders
may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto,
or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus, or any
such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by Goldman, Sachs & Co. expressly
for use therein; and will reimburse the Company and the Selling Stockholders for any legal or other
expenses reasonably incurred by the Company or the Selling Stockholders in connection with
investigating or defending any such action or claim as such expenses are incurred.




     (d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; provided, the omission so to notify the indemnifying
party shall not relieve the indemnifying party from any liability which it may have to any
indemnified party under subsection (a), (b) and (c) above, as applicable, except to the extent that
it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; provided, further, the omission so to notify the indemnifying party shall not relieve
the indemnifying party from any liability which it may have to any indemnified party otherwise than
under subsection (a), (b) and (c) above, as applicable. In case any such action shall be brought
against any indemnified party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such indemnified party,
in



19









 







connection with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action, claim, investigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out of such
action, claim, investigation or proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or any failure to act, by or on behalf of any indemnified party.




     (e) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by the Company and
Selling Stockholders on the one hand and the Underwriter on the other from the offering of the
Securities. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not only the relative
benefits referenced above but also the relative fault of the Company and Selling Stockholders on
the one hand and the Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received by the Company and
Selling Stockholders on the one hand and the Underwriter on the other shall be deemed to be in the
same proportion as (x) the total net proceeds from the offering (before deducting expenses)
received by the Selling Stockholders bears to (y) the total underwriting discounts and commissions
received by the Underwriter, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company, the Selling Stockholders and the Underwriter shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholders on the one hand or the Underwriter
on the other and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling Stockholders and the
Underwriter agree that it would not be just and equitable if contribution pursuant to this
subsection (e) were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this subsection (e).
The amount paid or



20









 







payable by an indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), (i) the Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission, and (ii) no Selling Stockholder shall be required to contribute (x) other than to
the extent the losses, claims, damages, liabilities or expenses arose from the written information
furnished to the Company by the Selling Stockholder expressly for use in the Registration
Statement, Preliminary Prospectus or Prospectus, or (y) any amount in excess of the aggregate gross
proceeds received by such Selling Stockholder from the Underwriters for the Securities. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.




     (f) The obligations of the Company and the Selling Stockholders under this Section 9 shall be
in addition to any liability which the Company and the Selling Stockholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act and each broker-dealer affiliate of the Underwriter; and
the obligations of the Underwriter under this Section 9 shall be in addition to any liability which
the respective Underwriter 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 or
any Selling Stockholders within the meaning of the Act.



     10. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Selling Stockholders and the Underwriter, as set forth in this Agreement or
made by 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 the
Underwriter or any controlling person of the Underwriter, or the Company, or any Selling
Stockholder or any officer or director or controlling person of the Company, or any controlling
person of any Selling Stockholder, and shall survive delivery of and payment for the Securities.



     11. If for any reason, the Securities are not delivered by or on behalf of the Selling
Stockholders as provided herein, each of the Selling Stockholders who failed to deliver such
Securities to be sold hereunder will reimburse the Underwriter through you for all out of pocket
expenses approved in writing by you, including fees and disbursements of counsel, reasonably
incurred by the



21









 







Underwriter in making preparations for the purchase, sale and delivery of the Securities not
so delivered by such Selling Stockholder, but the Company and the Selling Stockholders shall then
be under no further liability to the Underwriter in respect of the Securities not so delivered
except as provided in Sections 7 and 9 hereof.



     12. All statements, requests, notices and agreements hereunder shall be in writing, and if to
the Underwriter shall be delivered or sent by mail, telex or facsimile transmission to Goldman,
Sachs & Co., 200 West Street, New York, New York 10282, Attention: Registration Department; and if
to the Selling Stockholders shall be delivered or sent by mail, telex or facsimile transmission to
Silver Lake Partners, L.P., 2775 Sand Hill Road, Suite 100, Menlo Park, California 94025,
Attention: Karen King, Esq.; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to the Underwriter pursuant to Section
9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriter’s Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling Stockholders by you
upon request. Any such statements, requests, notices or agreements shall take effect upon receipt
thereof.



          In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriter is required to obtain, verify and record
information that identifies its clients, including the Company, which information may include the
name and address of its clients, as well as other information that will allow the Underwriter to
properly identify its clients.



     13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriter,
the Company and the Selling Stockholders and, to the extent provided in Sections 9 and 10 hereof,
the officers and directors of the Company and each person who controls the Company, the Selling
Stockholders or the Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from the Underwriter shall be deemed a successor
or assign by reason merely of such purchase.



     14. 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.



     15. The Company and the Selling Stockholders acknowledge and agree that (i) the purchase and
sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between
the Company and the Selling



22









 







Stockholders, on the one hand, and the Underwriter, on the other, (ii) in connection therewith
and with the process leading to such transaction each Underwriter is acting solely as a principal
and not the agent or fiduciary of the Company or the Selling Stockholders, (iii) no Underwriter has
assumed an advisory or fiduciary responsibility in favor of the Company or the Selling Stockholders
with respect to the offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company or the Selling
Stockholders on other matters) or any other obligation to the Company or the Selling Stockholders
except the obligations expressly set forth in this Agreement and (iv) the Company and the Selling
Stockholders have consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company and the Selling Stockholders agree that they will not claim that the
Underwriter, or any of them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or the Selling Stockholders, in connection with such
transaction or the process leading thereto.



     16. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, the Selling Stockholders and the Underwriter, or any of them, with
respect to the subject matter hereof.



     17. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.



     18. The Company, the Selling Stockholders and the Underwriter hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.



     19. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.



     20. Notwithstanding anything herein to the contrary, the Company and the Selling Stockholders
are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Company and the Selling Stockholders relating to that treatment
and structure, without the Underwriter’s imposing any limitation of any kind. However, any
information relating to the tax treatment and tax structure shall remain confidential (and the
foregoing sentence shall not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to
that treatment.



23









 




If the foregoing is in accordance with your understanding, please sign and return to us one for the
Company plus one for each counsel counterparts hereof, and upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement among the Underwriter, the
Company and each of the Selling Stockholders.




[Remainder of page intentionally left blank; signatures to follow]





24












 





	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	Gartner, Inc.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Christopher J. Lafond
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Christopher J. Lafond
	 

	 	 	 	Title:
	 	Executive Vice President, Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	Silver Lake Partners, L.P.
	 
	 	 	 	 	 	 
	 	 	By:	 	Silver Lake Technology Associates, L.L.C., its General Partner
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Karen M. King
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Karen M. King
	 

	 	 	 	Title:
	 	Managing Director and General Counsel
	 
	 	 	 	 	 	 
	 	 	Silver Lake Investors, L.P.
	 
	 	 	 	 	 	 
	 	 	By:	 	Silver Lake Technology Associates, L.L.C., its General Partner
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Karen M. King
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Karen M. King
	 

	 	 	 	Title:
	 	Managing Director and General Counsel
	 
	 	 	 	 	 	 
	 	 	Silver Lake Technology Investors, L.L.C.
	 
	 	 	 	 	 	 
	 	 	By:	 	Silver Lake Partners Management Company, L.L.C., its Manager
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Karen M. King
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Karen M. King
	 

	 	 	 	Title:
	 	Managing Director and General Counsel






Accepted as of the date hereof:




Goldman, Sachs & Co.




	 	 	 	 	 
	By:

	 	/s/ Goldman, Sachs & Co.
	 	 
	 	 	 	 	 
	 

	 	(Goldman, Sachs & Co.)	 	 






 









 





SCHEDULE I




	 	 	 	 	 
	 	 	Total Number of	 
	 	 	Shares	 
	 	 	to be Sold	 
	The Selling Stockholders (a):
	 	 	 	 
	Silver Lake Partners, L.P.
	 	 	7,370,961	 
	Silver Lake Investors, L.P.
	 	 	220,665	 
	Silver Lake Technology Investors, L.L.C.
	 	 	369,015	 
	 
	 	 	 	 
	 
	 	 	 
	Total
	 	 	7,960,641	 
	 
	 	 	 





(a) The Selling Stockholders are represented by Ropes & Gray LLP, One International
Place, Boston, MA 02110, Attention: Julie Jones




S-I









 








SCHEDULE II





	 	(a)	 	Issuer Free Writing Prospectuses:






	 	•	 	Issuer Free Writing Prospectus filed with the Commission on December 9,
2009 (File No. 333-163607)






	 	(b)	 	Additional Documents Incorporated by Reference:
	 
	 	 	 	None





S-II









 





SCHEDULE III




Pricing Information





	•	 	Number of Securities: 7,960,641






S-III