Exhibit 10.
2


 


AFFILIATED MANAGERS GROUP,
INC.


 


Shares of Common Stock

(par value $0.01 per share)


 


DISTRIBUTION AGENCY
AGREEMENT


 


July 31,
2009


 


DEUTSCHE BANK SECURITIES INC.


60 Wall Street


New York, New York
10005


 


Ladies and Gentlemen:


 


Affiliated
Managers Group, Inc., a Delaware corporation (the “Company”),
confirms its agreement with Deutsche Bank Securities Inc. (the “Manager”),
as follows:


 


Introductory.  The Company has entered into a forward stock purchase transaction with
Deutsche Bank AG, London Branch (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),
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 


 


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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.


 


(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 


 


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


 


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(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 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 


 


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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 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, 


 


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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
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 


 


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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 153 of 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 (which may be by telecopy or email) 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 every
Monday during the term of this Agreement following a week during which no
certificate was furnished pursuant to this Section 3(m) (except for
any Monday during any period starting on the first day of each fiscal quarter
of the Company and ending on the third business day following the next Company
Earnings Report Date) 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”),
on the 15th calendar day of the third month of each fiscal quarter of the
Company, 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 


 


19

















 


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 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.  The delivery requirements in this Section shall
be suspended after the Manager has sold the maximum number of Shares authorized
to be issued and sold under this Agreement.


 


(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 the 15th calendar day of the third month of
each fiscal quarter of the Company, 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, provided that the Company shall not be required to furnish or cause to
be furnished the opinion referred to in Section 4(c) other than upon
the commencement of the offering of the Shares and each date the Company files
an Annual Report on Form 10-K.  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.  The delivery
requirements in this Section shall be suspended after the Manager has sold
the maximum number of Shares authorized to be issued and sold under this
Agreement.


 


(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 the 15th calendar day of the third month of each fiscal quarter of the
Company, 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.  The delivery requirements in this Section shall
be suspended after the Manager has sold the maximum number of Shares authorized
to be issued and sold under this Agreement.


 


20














 


(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.


 


(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.


 


21

















 


(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.


 


(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.


 


22

















 


(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 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.  On every
date specified in Section 3(n) hereof, the Manager shall have
received a negative assurance letter of Cleary Gottlieb Steen &
Hamilton LLP, dated as of such date, 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.


 


23

















 


(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.


 


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;


 


24

















 


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
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 


 


25

















 


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
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 


 


26

















 


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 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 


 


27

















 


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.


 


(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 Deutsche Bank Securities
Inc., 60 Wall Street, New York, NY 10005, 60 Wall Street, 4th Floor, New York,
NY 10005, Attention: ECM Syndicate Desk (facsimile: 212-797-9344), with a copy
to the General Counsel (facsimile: 212-797-4564); 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.


 


28

















 


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 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:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Deutsche Bank Securities Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Lars Kestner

  	
   

  
	
   

  	
  Name: Lars Kestner

  	
   

  
	
   

  	
  Title: Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Peter Lambrakis

  	
   

  
	
   

  	
  Name: Peter Lambrakis

  	
   

  
	
   

  	
  Title: Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Deutsche Bank AG, London Branch

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Lars Kestner

  	
   

  
	
   

  	
  Name: Lars Kestner

  	
   

  
	
   

  	
  Title: Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Peter Lambrakis

  	
   

  
	
   

  	
  Name: Peter Lambrakis

  	
   

  
	
   

  	
  Title: Managing Director

  	
   

  



 

















 


Exhibit A


 


CONFIRMATION


 


Separately filed as
Exhibit 10.3


 














 


Exhibit B-1


 


FORM OF OPINION OF

ROPES & GRAY LLP


 


July 31, 2009


 


Deutsche Bank Securities
Inc.


60 Wall Street


New York, NY 10005


 


Re: Affiliated Managers
Group, Inc.


 


Ladies and Gentlemen:


 


We are furnishing this
opinion to you pursuant to Section 4(c) of the Distribution Agency
Agreement, dated as of July 31, 2009 (the “Distribution Agency Agreement”),
among Affiliated Managers Group, Inc., a Delaware corporation (the “Company”)
and Deutsche Bank Securities Inc. (the “Manager”).  Capitalized terms not otherwise defined
herein shall have the same respective definitions attributed to them in the
Distribution Agency Agreement.


 


We have acted as counsel for
the Company, in connection with the preparation and filing with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended (the “1933 Act”), of (i) a Registration Statement on Form S-3
(File No. 333-148029) filed by the Company with the Commission and
automatically effective on December 12, 2007 (the “Registration Statement”)
and (ii) a prospectus supplement, filed with the Commission on July 31,
2009 (the “Prospectus Supplement”), relating to the offering of the Common
Stock pursuant to the Distribution Agency Agreement.  The prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement and filed with the
Prospectus Supplement, is herein called the “Prospectus.”


 


 


In connection with this opinion, we have examined or
considered copies of the Registration Statement, the Prospectus, the
Distribution Agency Agreement and the Confirmation dated as of July 31,
2009 between the Company and Deutsche Bank AG, London Branch (the “Confirmation”),
and such other documents as we have deemed necessary as a basis for the
opinions expressed herein.  The
Distribution Agency Agreement and the Confirmation are collectively referred to
herein as the “Company Agreements.”


 


We express no opinion as to the laws of any
jurisdiction other than those of the Commonwealth of Massachusetts, the State
of New York, the Delaware General Corporation Law, and the federal laws of the
United States of America.


 

















 


In addition, we have examined originals or copies,
certified or otherwise indentified to our satisfaction, of such other documents
and records and have made such investigation of fact and such examination of
law as we have deemed appropriate in order to enable us to render the opinions
set forth herein.  In conducting such
investigation, we have relied, without independent verification, upon
certificates of officers of the Company, public officials and other appropriate
persons, and on the representations and warranties in the Distribution Agency
Agreement as to matters of fact.


 


For purposes of our opinions expressed in paragraphs
1, 3 and 5, we have relied exclusively on certificates of public officials in
the applicable jurisdictions or confirmation letters as to good standing status
from CT Corporation.  For purposes of our
opinion expressed as to the registration of each Adviser Subsidiary under the
Investment Advisers Act of 1940, as amended (the “Advisers Act”), we have
relied exclusively on a review of the Commission’s Investment Adviser Public
Disclosure website.


 


Based upon the foregoing,
and subject to the additional qualifications set forth below, we are of the
opinion that:


 


l.              The
Company is validly existing as a corporation in good standing under the laws of
the State of Delaware.


 


2.             The Company has corporate power to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into the Company Agreements.


 


3.             The Company has been duly qualified as a
foreign corporation to do business and is in good standing with the Secretary
of State in Massachusetts.


 


4.             The
Company has authorized common stock as set forth in the Registration Statement.


 


5.             Each
domestic (U.S.) subsidiary that the Company has informed us is a “significant
subsidiary” as defined in Rule 1-02(w) of Regulation S-X promulgated
by the Commission is an existing corporation, limited liability company,
limited partnership, general partnership or association with transferable
shares (commonly known as a “Massachusetts business trust”), as the case may
be; and each such subsidiary which is a corporation, limited liability company,
limited partnership or Massachusetts business trust is in good standing under
the laws of its jurisdiction of organization.


 


6.             Each
of the Company Agreements has been duly authorized, executed and delivered by
the Company.


 


7.             Subject to the penultimate paragraph hereof, the
Confirmation
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms.


 

















 


8.             The
Settlement Shares (as defined in the Confirmation) have been duly authorized
and, when issued in accordance with the provisions of the Confirmation, will be
validly issued, fully paid and non-assessable.


 


9.             The
issuance of the Settlement Shares is not subject to any preemptive right in the
Certificate of Incorporation or the By-laws of the Company or the Delaware
General Corporation Law.


 


10.           No
consent, approval or authorization of any Massachusetts, New York or federal
court or governmental authority or agency is necessary in connection with the
due authorization, execution and delivery of the Company Agreements, or for the
issuance of the Settlement Shares in accordance with the Confirmation, other
than as may be required under the securities or blue sky laws of the various
States (as to which we express no opinion).


 


11.           The
Registration Statement has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) under the
1933 Act has been made in the manner and within the time period required by Rule 424(b);
and, to our knowledge (i) no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933 Act and (ii) no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission under the 1933 Act.


 


12.           The
execution, delivery and performance by the Company of the Company Agreements
and the issuance and sale of the Settlement Shares will not (i) violate
any provision of the laws of the Commonwealth of Massachusetts, the laws of the
State of New York, the Delaware General Corporation Law, the federal laws of
the United States, except that we express no opinion as to state securities or
blue sky laws or as to compliance with the antifraud provisions of federal and
state securities laws, or the Certificate of Incorporation or By-Laws of the
Company, (ii) breach or result in a default under any of the agreements on
Exhibit A hereto, or (iii) violate any judgment, injunction,
order or decree listed on Exhibit A hereto.


 


13.           Each
subsidiary of the Company identified on Exhibit B hereto (“Adviser
Subsidiary”) is registered as an investment adviser under the Advisers Act, and
no Adviser Subsidiary is required to be registered, licensed or qualified as an
investment adviser under the laws of the Commonwealth of Massachusetts or the
State of New York. The Company is not required to register as an investment
adviser within the meaning of the Advisers Act and the rules and
regulations of the Commission promulgated thereunder.


 


14.           The
Company is not 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 “Investment Company Act”).


 


15.           The
consummation of the transactions contemplated by the Company Agreements will
not result in an “assignment,” within the meaning of the Advisers Act or the
Investment Company Act, of any investment advisory agreement to which the
Company or any Adviser Subsidiary is a party.


 

















 


Our
opinion that the Confirmation constitutes the legal, valid, and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, is subject to (a) bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting the rights and remedies of
creditors, (b) general principles of equity, regardless of whether applied
in proceedings in equity or at law, and (c) the qualification that, for
the provisions contained in the Confirmation pertaining to the calculation of
payment obligations upon early termination of the transactions subject to the
Confirmation to be valid and enforceable, the actual damages incurred by the
party to whom payment would be owed (determined in accordance with the
Confirmation) must be difficult to ascertain and the payment to such party (as
so determined) must represent a reasonable estimate of such actual damages or,
on the other hand, if such actual damages are easily ascertainable and such
payment (as so determined) is unreasonably and grossly disproportionate to such
actual damages, or is unconscionably excessive, a court will award such party
no more than such actual damages.  In
addition, we express no opinion (a) as to the extent to which broadly
worded waivers or provisions providing for conclusive presumptions or
determinations, submission to exclusive jurisdiction, waiver of or consent to
service of process and venue, or waiver of offset or defenses will be enforced
and (b) as to the application to the Confirmation or any transaction under
the Confirmation or the effect on the legality, validity, binding nature, or
enforceability of the Confirmation or any transaction under the Confirmation of
any federal, Massachusetts or New York law regulating gambling, betting,
gaming, or the existence or operation of so-called “bucket shops”.


 


This opinion letter is
furnished by us as counsel for the Company to you and is solely for the benefit of you in your role as Manager
under the Distribution Agency Agreement, and may not be relied on by you for
any other purpose, or furnished to, quoted to, or relied on by, in whole or in
part, any other person, firm or corporation for any purpose, without our prior
written consent.


 


Very truly yours,


 


 


Ropes & Gray LLP


 

















 


Exhibit B-2


 


FORM OF NEGATIVE ASSURANCE LETTER OF

ROPES & GRAY LLP


 


July 31, 2009


 


Deutsche Bank Securities
Inc.


60 Wall Street


New York, NY 10005


 


Re: Affiliated Managers
Group, Inc.


 


Ladies and Gentlemen:


 


We refer to the
Distribution Agency Agreement dated July 31, 2009, by and among Affiliated
Managers Group, Inc., a Delaware corporation (the “Company”) and you.  We have acted as counsel to the Company in
connection with the transactions described therein.  Terms defined in the Distribution Agency
Agreement and not otherwise defined herein are used herein with the meanings so
defined.


 


As counsel to the Company, we have reviewed the Registration
Statement and the Prospectus and the documents incorporated by reference
therein and participated in discussions with officers and representatives of
the Company, representatives of the independent registered public accounting
firm for the Company and your representatives and counsel at which discussions
the contents of these documents were discussed.


 


The purpose of our engagement was not to establish
or confirm factual matters set forth in the Registration Statement or the
General Disclosure Package or the documents incorporated by reference therein,
and we have not undertaken any obligation to verify independently any of the
factual matters set forth in those documents. 
Moreover, many of the determinations required to be made in the preparation
of such documents involve judgments that are primarily of a non-legal nature.


 


Subject to the foregoing and on the basis of
information that we have gained in the course of our representation of the
Company and our participation in the discussions referred to above, we confirm
to you that the Registration Statement, as of the most recent effective date
established under Rule 430B, and the Prospectus, as of its date, complied
as to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and that the documents incorporated by reference into the
Prospectus, when they were filed with the Commission, complied as to form in
all material respects with the requirements of the 1934 Act and the 1934 Act
Regulations.  In addition, based on the
information and participation described above, no 


 

















 


facts that have come to our attention have caused us
to believe that (i) the Registration Statement, as of the most recent
effective date established under Rule 430B, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading or (ii) the
General Disclosure Package, as of the time at which this letter is delivered to
you, contained an untrue statement of a material fact or omitted 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. We do not,
however, assume any responsibility for the accuracy, completeness or fairness
of the statements made or the information contained in the Registration
Statement or the General Disclosure Package or the documents incorporated by
reference therein, except for those statements in the Prospectus under the
caption “Description of Common Stock” insofar as they represent descriptions or
conclusions of law, descriptions of securities or a summary of documents
referred to therein, which fairly summarize in all material respects such descriptions,
conclusions or documents.


 


This letter does not express any view with respect
to the financial statements, schedules and other financial or accounting data
included or incorporated by reference in the Registration Statement or the
General Disclosure Package.


 


This letter is furnished by us to you solely for
your benefit in your capacity as Manager to assist you in establishing defenses
under applicable securities laws and may not be relied on for any other purpose
or by any person other than you.


 


Very
truly yours,


 


 


Ropes & Gray LLP


 

















 


EXHIBIT
C


 


Form of Electronic Communication Specified in Section 2(a)(viii):


 


Please confirm that the prospectus (including the
documents incorporated by reference therein), as of the date of this email,
does not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.


 


Officers Initially Designated by the Company for purposes
of Section 2(k) and Section 3(v):


 


Darrell
Crate (darrell.crate@amg.com)


 


Peter
MacEwen (pmacewen@amg.com)


 


John
Kingston (john.kingston@amg.com).