exv10w1






Exhibit 10.1




EXECUTION COPY




8,000,000 shares




Gartner, Inc.



Common Stock



UNDERWRITING AGREEMENT



February 17, 2011




Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, NY 10010-3629




Goldman, Sachs & Co.

200 West Street

New York, NY 10282



Dear Sirs:




     1. Introductory. ValueAct Capital Master Fund, L.P., a limited partnership organized under
the laws of the British Virgin Islands (the “Selling Stockholder”), agrees with the several
Underwriters named in Schedule A hereto (the “Underwriters”) to sell to the Underwriters an
aggregate of 8,000,000 outstanding shares of common stock, $0.0005 par value per share
(“Securities”), of Gartner, Inc., a Delaware corporation (the “Company”) (such 8,000,000 shares of
Securities being hereinafter referred to as the “Firm Securities”). The Selling Stockholder also
agrees with the Underwriters to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 1,200,000 additional outstanding shares (the “Optional Securities”) of
the Securities, as set forth below. The Firm Securities and the Optional Securities are herein
collectively called the “Offered Securities”.



     2. Representations and Warranties of the Company and the Selling Stockholder. (a) The
Company represents and warrants to, and agrees with, the Underwriters that:



 









 






     (i) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-3ASR (No.
333-172266), including a related prospectus or prospectuses, covering the registration of
the Offered Securities under the Act, which has become effective. “Registration Statement”
at any particular time means such registration statement in the form then filed with the
Commission, including any amendment thereto, any document incorporated by reference therein
and all 430B Information and all 430C Information with respect to such registration
statement, that in any case has not been superseded or modified. “Registration Statement”
without reference to a time means the Registration Statement as of the Effective Time. For
purposes of this definition, 430B Information shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.




     (ii) For purposes of this Agreement:




     “430B Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part
of the Registration Statement pursuant to Rule 430B(f).




     “430C Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430C.




     “Act” means the Securities Act of 1933, as amended.




     “Applicable Time” means 4:45 p.m. (Eastern time) on the date of this Agreement.




     “Closing Date” has the meaning defined in Section 3 hereof.




     “Commission” means the Securities and Exchange Commission.




     “Effective Time” of the Registration Statement relating to the Offered Securities means
the time of the first contract of sale for the Offered Securities.




     “Exchange Act” means the Securities Exchange Act of 1934, as amended.




     “Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430B Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.




     “General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule B to this Agreement.




     “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433, relating to the Offered Securities 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).




     “Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.




     “Rules and Regulations” means the rules and regulations of the Commission.




     “Securities Laws” means, collectively, the Sarbanes-Oxley Act of 2002
(“Sarbanes-Oxley”), the Act, the Exchange Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors of “issuers” (as defined
in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board
and the rules of the New York Stock Exchange (“Exchange Rules”).




     “Statutory Prospectus” with reference to any particular time means the prospectus
relating to the Offered Securities that is included in the Registration Statement
immediately prior to that time, any document incorporated by reference therein and all 430B
Information and all 430C Information with respect to such registration statement, that in
any case has not been superseded or modified. For purposes of the foregoing definition,
430B Information shall be considered to be included in the Statutory Prospectus only as of
the actual time that a form of prospectus (including a prospectus supplement) is filed with
the Commission pursuant to Rule 424(b) and not retroactively.




     Unless otherwise specified, a reference to a “Rule” is to the indicated rule under the
Act.




     (iii) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the
preliminary prospectus supplement, dated February 15, 2011 (including any document
incorporated by reference therein as of the Applicable Time), including the base prospectus,
dated February 15, 2011 (which is the most recent Statutory Prospectus distributed to
investors generally), and the other information, if any, stated in Schedule B to this
Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use Issuer
Free Writing Prospectus, when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted 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. The preceding sentence does not apply to statements
in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the Company
specifically for use therein by (x) the Selling Stockholder, it being understood and agreed
that the only such information furnished by the Selling Stockholder consists of the
information described as such in Section 8(b) and (y) the Underwriters, it being understood
and agreed that the only such information furnished by the Underwriters consists of the
information described as such in Section 8(c).



 









 






     (iv) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
the Underwriters as described in the next sentence, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information then
contained in the Registration Statement. 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
then contained in the Registration Statement or as a result of which such Issuer Free
Writing Prospectus, if republished immediately following such event or development, 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
under which they were made, not misleading, (i) the Company has promptly notified or will
promptly notify the Underwriters and (ii) the Company has promptly amended or will promptly
amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.




     (v) Automatic Shelf Registration Statement.




	 	(1)	 	(i) Well-Known Seasoned Issuer Status. (A)
At the time of initial filing of the Registration Statement, (B) at the
time of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section
13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the
time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c)) made any offer relating
to the Offered Securities in reliance on the exemption of Rule 163, the
Company was a “well known seasoned issuer” as defined in Rule 405,
including not having been an “ineligible issuer” as defined in Rule
405;
	 
	 	(2)	 	Effectiveness of Automatic Shelf Registration
Statement. The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405, that initially became
effective on February 15, 2011. If immediately prior to the Renewal
Deadline (as hereinafter defined), any of the Offered Securities remain
unsold by the Underwriters, the Company will prior to the Renewal
Deadline file, if it has not already done so and is eligible to do so,
a new automatic shelf registration statement relating to the Offered
Securities, in a form satisfactory to the Underwriters. If the Company
is no longer eligible to file an automatic shelf registration
statement, the Company will prior to the Renewal Deadline, if it has
not already done so, file a new shelf registration




 









 






	 	 	 	statement relating to the Offered Securities, in a form satisfactory
to the Underwriters, and will use its best efforts to cause such
registration statement to be declared effective within 180 days after
the Renewal Deadline. The Company will take all other action
necessary or appropriate to permit the public offering and sale of
the Offered Securities to continue as contemplated in the expired
registration statement relating to the Offered Securities.
References herein to the Registration Statement shall include such
new automatic shelf registration statement or such new shelf
registration statement, as the case may be. “Renewal Deadline” means
the third anniversary of the initial effective time of the
Registration Statement;






	 	(3)	 	Eligibility to Use Automatic Shelf Registration
Form. The Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) objecting to use of the automatic shelf
registration statement form. If at any time when Offered Securities
remain unsold by the Underwriters the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to
be eligible to use the automatic shelf registration statement form, the
Company will (i) promptly notify the Underwriters, (ii) promptly file a
new registration statement or post-effective amendment on the proper
form relating to the Offered Securities, in a form satisfactory to the
Underwriters, (iii) use its best efforts to cause such registration
statement or post-effective amendment to be declared effective as soon
as practicable, and (iv) promptly notify the Underwriters of such
effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Offered
Securities to continue as contemplated in the registration statement
that was the subject of the Rule 401(g)(2) notice or for which the
Company has otherwise become ineligible. References herein to the
Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be;
	 
	 	(4)	 	Filing Fees. The Company has paid or shall pay
the required Commission filing fees relating to the Offered Securities
within the time required by Rule 456(b)(1) without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r); and
	 
	 	(5)	 	No Stop Order. No stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no




 









 






	 	 	 	proceedings for that purpose have been instituted or are pending or
contemplated under the Act.






     (vi) Ineligible Issuer Status. At (i) the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) the date of
this Agreement, the Company was not and is not an “ineligible issuer,” as defined in Rule
405.




     (vii) Compliance with Securities Act Requirements. (i) (A) At the time the
Registration Statement initially became effective, (B) at the time of each amendment thereto
for the purposes of complying with Section 10(a)(3) of the Act (whether by post effective
amendment, incorporated report or form of prospectus), (C) at the Effective Time relating to
the Offered Securities and (D) on the Closing Date, the Registration Statement conformed and
will conform in all material respects to the applicable requirements of the Act and the
Rules and Regulations and did not and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and (ii) (A) on its date, (B) at the time of filing
the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final
Prospectus will conform in all material respects to the requirements of the Act and the
Rules and Regulations, and will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from any such document based
upon written information furnished to the Company specifically for use therein by (x) the
Selling Stockholder, it being understood and agreed that the only such information is that
described as such in Section 8(b) hereof or (y) the Underwriters, it being understood and
agreed that the only such information is that described as such in Section 8(c) hereof.




     (viii) Incorporated Documents. The documents incorporated by reference in the
Registration Statement and the Statutory Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided,
however, that this representation and



 









 







warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the Underwriters for use
therein or by a Selling Stockholder expressly for use in the preparation of the information
in the Base Prospectus and the Prospectus under the caption “Selling Stockholder;” and no
such documents were filed with the Commission since the Commission’s close of business on
the business day immediately prior to the date of this Agreement and prior to the execution
of this Agreement, except as set forth on Schedule B hereto.




     (ix) Subsidiaries. Each of the Company’s subsidiaries that have either (i) total
assets that exceed 10 percent of the total assets of the Company and its subsidiaries, on a
consolidated basis, as of December 31, 2010, or (ii) total revenues that exceed 10 percent
of the total revenues of the Company and its subsidiaries, on a consolidated basis, for the
year ended December 31, 2010, is herein referred to as a “Subsidiary” and collectively as
the “Subsidiaries.” Neither the Company nor any of its Subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by reference in the
General Disclosure Package and the Final Prospectus any loss or interference with its
business that is material to the Company and its Subsidiaries, taken as a whole, from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the General Disclosure Package; and there has not been any Material Adverse
Effect (as defined below), otherwise than as set forth or contemplated in the General
Disclosure Package.




     (x) Title to Property. The Company and its Subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and defects except
such as are described in the General Disclosure Package or such as do not affect the value
of such property and do not interfere with the use made and proposed to be made of such
property by the Company and its Subsidiaries, except for such defects and interferences as
would not have a Material Adverse Effect; and any real property and buildings held under
lease by the Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material to the Company and its
Subsidiaries, taken as a whole, and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and its Subsidiaries.




     (xi) Good Standing of the Company and the Subsidiaries. The Company and the
Subsidiaries have been duly incorporated or formed, as the case may be, and are validly
existing as a corporation, limited liability company, limited partnership, limited company
or other corporate entity as the case may be, in good standing under the laws of each of
their respective jurisdictions of incorporation or organization, as the case may be, with
power and authority (corporate and other) to own their properties and conduct their business
as described in the General Disclosure Package and the Final Prospectus, and



 









 







have been duly qualified as a foreign corporation, limited liability company, limited
partnership, limited company or other corporate entity as the case may be, for the
transaction of business and are in good standing under the laws of each other jurisdiction
in which they own or lease properties or conduct any business so as to require such
qualification, or are subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction, except where the failure to be so
qualified or have such power or authority would not result in a Material Adverse Effect. A
“Material Adverse Effect” shall mean any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of the Company
and its Subsidiaries, taken as a whole or in its ability to consummate the transactions
contemplated by this Agreement and the Company Purchase Agreement (as defined below).




     (xii) Absence of Defaults and Conflicts Resulting from Transaction. The compliance by
the Company with this Agreement and the agreement, dated February 14, 2011, between the
Company and the Selling Stockholder, respecting the purchase of 500,000 Securities by the
Company from the Selling Stockholder (the “Company Purchase Agreement”) and the consummation
of the transactions herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under (i)
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, (ii) the Certificate of Incorporation or By-laws of the Company
or (iii) any statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of their
properties, except, with respect to clauses (i) and (iii), as would not have a Material
Adverse Effect; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement and the Company Purchase Agreement except such as have been
obtained under the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters.




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



 









 






     (xiv) Accurate Disclosure. The statements set forth in the General Disclosure Package
and the Final Prospectus under the caption “Description of Capital Stock”, insofar as they
purport to constitute a summary of the terms of the Securities, and under the caption
“Underwriting”, insofar as they purport to describe the documents referred to therein, are
accurate, complete and fair in all material respects.




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




     (xvi) Investment Company Act. The Company is not an “investment company” as defined in
the Investment Company Act of 1940 (the “Investment Company Act”).




     (xvii) Internal Controls and Compliance with the Sarbanes-Oxley Act.




	 	(1)	 	KPMG LLP, which has certified certain financial
statements of the Company and its subsidiaries, and have audited the
Company’s internal control over financial reporting and management’s
assessment thereof are an independent registered public accounting firm
as required by the Act and the rules and regulations of the Commission
thereunder;
	 
	 	(2)	 	The Company maintains a system of internal
control over financial reporting (as such term is defined in Rule
13a-15(f) under the Exchange Act) that complies with the requirements
of the Exchange Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses in
its internal control over financial reporting;
	 
	 	(3)	 	Since the date of the latest audited financial
statements included or incorporated by reference in the General
Disclosure Package, there has been no change in the Company’s internal
control over




 









 






	 	 	 	financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over
financial reporting; and






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






     (xviii) Offered Securities. The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; the authorized equity capitalization
of the Company is as set forth in the General Disclosure Package; all outstanding shares of
capital stock of the Company (including the Offered Securities) are validly issued, fully
paid and nonassessable, conform in all material respects to the information in the General
Disclosure Package and to the description of such Offered Securities contained in the Final
Prospectus; the stockholders of the Company have no preemptive rights with respect to the
Securities; and none of the outstanding shares of capital stock of the Company have been
issued in violation of any preemptive or similar rights of any security holder.




     (xix) Registration Rights. Except as disclosed in the General Disclosure Package,
there are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act. (collectively, “registration
rights”), and any person to whom the Company has granted registration rights has agreed not
to exercise such rights until after the expiration of the Lock-Up Period referred to in
Section 5(j) hereof.




     (xx) Listing. The Offered Securities are listed on the New York Stock Exchange.




     (xxi) Authorization of Agreements. This Agreement and the Company Purchase Agreement
have been duly authorized, executed and delivered by the Company. The Company Purchase
Agreement is enforceable against the Company in accordance with its terms.



 









 






     (xxii) Absence of Manipulation. The Company has not taken, directly or indirectly, any
action that is designed to or that has constituted or that would 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 the Offered Securities.




     (xxiii) Financial Statements. The financial statements included in the Registration
Statement and the General Disclosure Package present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in the United
States applied on a consistent basis. No other financial statements are required to be filed
or included in the Registration Statement.




     (xxiv) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries, taken as a whole, that is material and adverse, (ii) except as disclosed in or
contemplated by the General Disclosure Package, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital stock and
(iii) except as disclosed in or contemplated by the General Disclosure Package, there has
been no material adverse change in the capital stock, short-term indebtedness, long-term
indebtedness, net current assets or net assets of the Company and its subsidiaries.




     (xxv) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor any
director or officer nor, to the knowledge of the company, any employee, agent or other
person associated with or acting on behalf of the Company or any of its subsidiaries, has
(i) used any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of
1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment, (clauses (i) through (iv), collectively, “Unlawful Payments”).




     (xxvi) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in material compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, and, to the knowledge of the Company, the applicable
money laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively,



 









 







the “Money Laundering Laws”). No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company, threatened.




     (xxvii) Compliance with OFAC. None of the Company, any of its subsidiaries or any
director, officer, or affiliate, or, to the knowledge of the Company, any employee, agent
or other person associated with or acting on behalf of the Company or any of its
subsidiaries, is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”).




     (xxviii) Compliance Policies. The Company has in place policies and procedures
reasonably designed to ensure that (i) no Unlawful Payments are made by or on behalf of the
Company or any of its subsidiaries, (ii) the Company and its subsidiaries conduct operations
in compliance in all material respects with applicable Money Laundering Laws and (iii) no
funds of the Company or any of its subsidiaries are used for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.




     (xxix) Projections. The projections, estimates, forecasts and forward-looking guidance
(collectively, the “Projections”) included in the Company’s Current Report on Form 8-K,
including Exhibit 99.1 thereto, filed with the Securities and Exchange Commission on
February 16, 2011, including without limitation the items circled on Exhibit A to the
certificate delivered to the Underwriters by the Company’s Chief Financial Officer on each
Closing Date, have been prepared by the Company in good faith based on (a) principles
consistent with the Company’s internal models and with the past practices of the Company
with respect to its publicly announced projections, estimates, forecasts and forward-looking
guidance, (b) assumptions that are reasonable at the time the applicable Projections were
made and on the date hereof, (c) to the knowledge of the Company, the best information
reasonably available to the Company at the time the applicable Projections were made and on
the date hereof and (d) to the extent the Projection relates to GAAP financial measures,
accounting principles applied on a basis substantially consistent with that of the
historical consolidated audited financial statements of the Company. Each Projection
represents the Company’s current good faith estimate of the Company’s future performance for
the period stated therein.




     (xxx) Fees and Expenses. All fee sharing or reimbursement agreements between the
Company and the Selling Stockholder relating to fees and expenses arising from the
transactions contemplated by this Agreement have been accurately disclosed in the General
Disclosure Package and the Prospectus.



     (b) The Selling Stockholder represents and warrants to, and agrees with, the Underwriters
that:



 









 






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




     (ii) Absence of Defaults and Conflicts Resulting from Transaction. The sale of the
Securities to be sold by the Selling Stockholder hereunder and under the Company Purchase
Agreement and the compliance by the Selling Stockholder with all of the provisions herein
and therein and the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation, in any material respect, of any of the
terms or provisions of, or constitute a material default under, any statute, indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any
of the property or assets of the Selling Stockholder are subject, nor will such action
result in any violation of the provisions of the Selling Stockholder’s Amended and Restated
Articles of Partnership or Memorandum of Partnership or any material violation of any
statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property of the Selling Stockholder.




     (iii) Title to Securities. The Selling Stockholder has, and immediately prior to the
Closing Date the Selling Stockholder will have, good and valid title to the Securities to be
sold by the Selling Stockholder hereunder, free and clear of all liens, encumbrances,
equities or claims; and, upon delivery of such Securities and payment therefor pursuant
hereto, good and valid title to such Securities, free and clear of all liens, encumbrances,
equities or claims, will pass to the Underwriters.




     (iv) Absence of Manipulation. The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Securities.




     (v) Compliance with Securities Act Requirements. (i) (A) At the time the Registration
Statement initially became effective, (B) at the time of each amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether by post effective amendment,
incorporated report or form of prospectus), (C) at the Effective Time relating to the
Offered Securities and (D) on the Closing Date the Registration Statement conformed and will
conform in all material respects to the requirements of the Act and the Rules and
Regulations and did not and will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading and (ii) on its date, at the time of



 









 







filing of the Final Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Time of the Additional Registration Statement in which the Final
Prospectus is included, and on each Closing Date, the Final Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations and will not include
any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. The preceding
sentence shall only apply to statements in or omissions from any such document based upon
written information furnished to the Company by the Selling Stockholder specifically for use
therein, it being understood and agreed that the only such information is that described as
such in Section 8(b) hereof.




     (vi) Good Standing of the Selling Stockholder. The Selling Stockholder has been duly
formed and is validly existing as a limited partnership, in good standing under the laws of
the British Virgin Islands, with power and authority (limited partnership and other) to own
its properties and conduct its business as currently conducted, and has been duly qualified
as a limited partnership for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or are subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction, except
where the failure to be so qualified or have such power or authority would not result in any
material adverse change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position, partners’ capital or
results of operations of the Selling Stockholder or in its ability to consummate the
transactions contemplated by this Agreement and the Company Purchase Agreement.




     (vii) Authorization of Agreements. This Agreement and the Company Purchase Agreement
have been duly authorized, executed and delivered by the Selling Stockholder, and the
Company Purchase Agreement is enforceable against the Selling Stockholder in accordance with
its terms.




     (viii) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Selling Stockholder and any
person that would give rise to a valid claim against the Selling Stockholder or the
Underwriters for a brokerage commission, finder’s fee or other like payment in connection
with this offering.




     (ix) Fees and Expenses. All fee sharing or reimbursement agreements between the
Company and the Selling Stockholder relating to fees and expenses arising from the
transactions contemplated by this Agreement have been accurately disclosed in the General
Disclosure Package and the Prospectus.



 









 





     3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Selling
Stockholder agrees to sell to the several Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Selling Stockholder, at a purchase price equal to
$34.435 per share, the respective number of shares of Firm Securities set forth opposite the name
of such Underwriter in Schedule A hereto.



     The Selling Stockholder shall deliver the Firm Securities to or as instructed by the
Underwriters, in a form reasonably acceptable to the Underwriters, through the facilities of The
Depository Trust & Clearing Corporation (“DTC”) for the account of the Underwriters, against
payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer of
Federal (same day) funds to an account at BNP Paribas or another bank acceptable to the
Underwriters designated in writing by the Selling Stockholder to the Underwriters at 10:00 a.m.,
New York time, on February 24, 2011, or at such other time not later than seven full
business days thereafter as the Underwriters and the Selling Stockholder determine, such time being
herein referred to as the “First Closing Date”. For purposes of Rule 15c6-1 under the Securities
Exchange Act of 1934, the First Closing Date (if later than the otherwise applicable settlement
date) shall be the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates evidencing the Offered
Securities so to be delivered (if such Offered Securities are in certificated form), or, if such
Offered Securities are uncertificated, records of DTC evidencing the Offered Securities so to be
delivered, will be made available for checking at the above office of Skadden, Arps, Slate, Meagher
& Flom LLP at least 24 hours prior to the Closing Date.



     In addition, upon written notice from the Underwriters given to the Company and the Selling
Stockholder not more than 30 days subsequent to the date of the Final Prospectus, the Underwriters
may purchase all or less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. The Selling Stockholder agrees to sell to the Underwriters the
number of shares of Optional Securities specified in such notice and the Underwriters, severally
and not jointly, agree to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the number of shares of
Firm Securities set forth opposite such Underwriter’s name bears to the total number of shares of
Firm Securities (subject to adjustment by Credit Suisse Securities (USA) LLC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are,
sold and delivered. The right to purchase the Optional Securities or any portion thereof may be
exercised at one time only and may be surrendered and terminated at any time upon notice by the
Underwriters to the Company and the Selling Stockholder.



     The time for the delivery of and payment for the Optional Securities, being herein referred to
as the “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Underwriters but shall be not later than five full business days



 









 




after written notice of election to purchase Optional Securities is given. The Selling
Stockholder will deliver the Optional Securities being purchased on the Optional Closing Date to or
as instructed by the Underwriters, through the facilities of DTC, for the accounts of the several
Underwriters, against payment by or on behalf of the Underwriters of the purchase price therefor by
wire transfer of Federal (same-day) funds to an account at BNP Paribas or another bank acceptable
to the Underwriters designated in writing by the Selling Stockholder to the Underwriters. The
certificates evidencing the Offered Securities so to be delivered (if such Offered Securities are
in certificated form) or, if such Offered Securities are uncertificated, records of DTC evidencing
the Offered Securities so to be delivered will be made available for checking at the above office
of Skadden, Arps, Slate, Meagher & Flom LLP at least 24 hours prior to the Closing Date.




     4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.



     5. Certain Agreements of the Company and the Selling Stockholder. The Company and, to the
extent applicable, the Selling Stockholder agree with the several Underwriters, and the Company, to
the extent applicable, agrees with the Selling Stockholder, that:



     (a) Additional Filings. The Company has filed or will file each Statutory Prospectus
(including the Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if
applicable and consented to by the Underwriters, subparagraph (5)) not later than the second
business day following the earlier of the date it is first used or the execution and delivery of
this Agreement. The Company has complied and will comply with Rule 433.



     (b) Filing of Amendments: Response to Commission Requests. The Company will promptly advise
the Underwriters and the Selling Stockholder of any proposal to amend or supplement the
Registration Statement or any Statutory Prospectus at any time and will offer the Underwriters a
reasonable opportunity to comment on any such amendment or supplement; and the Company will also
advise the Underwriters promptly of (i) the effectiveness of any Additional Registration Statement
(if its Effective Time is subsequent to the execution and delivery of this Agreement), (ii) any
amendment or supplementation of a Registration Statement or any Statutory Prospectus, (iii) any
request by the Commission or its staff for any amendment to the Registration Statement, for any
supplement to any Statutory Prospectus or for any additional information, (iv) the institution by
the Commission of any stop order proceedings in respect of the Registration Statement or the
threatening of any proceeding for that purpose, and (v) the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered Securities in any
jurisdiction or the institution or threatening of any proceedings for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.



 









 





     (c) Continued Compliance with Securities Laws. If, at any time when a prospectus relating to
the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered
under the Act by any Underwriter or dealer, any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary at any time to
amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the
Company will promptly notify the Underwriters of such event and will promptly prepare and file with
the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other
dealers upon request of the Underwriters, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. The Underwriters’ delivery
of any such amendment or supplement shall not constitute a consent to or waiver of any of the
conditions set forth in Section 7 hereof.



     (d) Rule 158. As soon as practicable, but not later than 16 months, after the date of this
Agreement, the Company will make generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the date of this Agreement and satisfying
the provisions of Section 11(a) of the Act and Rule 158.



     (e) Furnishing of Prospectuses. The Company will furnish to the Underwriters copies of the
Registration Statement, including all exhibits, any Statutory Prospectus, the Final Prospectus and
all amendments and supplements to such documents, in each case as soon as available and in such
quantities as the Underwriters reasonably request. The Company will pay the expenses of printing
and distributing to the Underwriters all such documents.



     (f) Blue Sky Qualifications. The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the Underwriters designate and will
continue such qualifications in effect so long as required for the distribution.



     (g) Reporting Requirements. During the period of five years hereafter, the Company will
furnish to the Underwriters, as soon as practicable after the end of each fiscal year, a copy of
its annual report to stockholders for such year; and the Company will furnish to the Underwriters
(i) as soon as available, a copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the Underwriters may reasonably request.
However, so long as the Company is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its
Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”), it is not required to furnish
such reports or statements to the Underwriters.



     (h) Payment of Expenses. The Selling Stockholder will pay, and the Company acknowledges that
the Selling Stockholder will pay, all expenses incident to the performance of the Selling
Stockholder’s and the Company’s obligations under this Agreement, including but



 









 




not limited to fees and expenses of the Company’s counsel and independent registered public
accounting firm, any filing fees and other expenses incurred in connection with qualification of
the Offered Securities for sale under the laws of such jurisdictions as the Underwriters designate
and the preparation and printing of memoranda relating thereto (including filing fees and expenses
of counsel for the Underwriters relating to such qualification), costs and expenses related to the
review (if any) by the Financial Industry Regulatory Authority, Inc. of the Offered Securities
(including filing fees and expenses of counsel for the Underwriters relating to such review), costs
and expenses relating to investor presentations or any “road show” in connection with the offering
and sale of the Offered Securities including, without limitation, any travel expenses of the
Company’s officers and employees and any other expenses of the Company including the chartering of
airplanes, fees and expenses incident to listing the Offered Securities on the New York Stock
Exchange, American Stock Exchange, NASDAQ Stock Market and other national and foreign exchanges,
fees and expenses in connection with the registration of the Offered Securities under the Exchange
Act, any transfer taxes on the sale by the Selling Stockholder of the Offered Securities to the
Underwriters and expenses incurred in distributing preliminary prospectuses and the Final
Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses
incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors
or prospective investors; provided, however, except as set forth in this Agreement, the
Underwriters shall pay their own costs and expenses, including the fees of their counsel.




     (i) Absence of Manipulation. The Company and the Selling Stockholder will not take, directly
or indirectly, any action designed to or that would constitute or that might reasonably be expected
to cause or result in, stabilization or manipulation of the price of any securities of the Company
to facilitate the sale or resale of the Offered Securities.



     (j) Restriction on Sale of Securities by Company. For the period specified below (the
“Lock-Up Period”), the Company will not, directly or indirectly, take any of the following actions
with respect to its Securities or any securities convertible into or exchangeable or exercisable
for any of its Securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge
or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to
purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any
swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences
of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or
liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of
Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the
Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action,
without the prior written consent of Credit Suisse, except grants of stock options, common stock
equivalents (“CSEs”), restricted stock units (“RSUs”), stock appreciation rights (“SARs”) and
restricted stock pursuant to the terms of a plan in effect on the date hereof as described in the
General Disclosure Package or issuances of Lock-Up Securities in the ordinary course of business
pursuant to the exercise, conversion or vesting of stock options, CSEs, RSUs and SARs outstanding
on the date hereof granted under such plans. The initial Lock-Up Period will commence on the date
hereof and continue for 30 days after the date hereof or such earlier date that Credit Suisse
consents to in writing.



 









 





     6. Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company and the
Selling Stockholder represent and agree that, unless they obtain the prior consent of the
Underwriters, and each Underwriter represents and agrees that, unless it obtains the prior consent
of the Company and the Underwriters, it has not made and will not make any offer relating to the
Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the Company and the Underwriters is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it
has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free
writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely
Commission filing where required, legending and record keeping.



     7. Conditions of the Obligations of the Underwriters. The obligations of the Underwriters to
purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to
be purchased on the Optional Closing Date will be subject to the accuracy of the representations
and warranties of the Company and the Selling Stockholder herein (as though made on such Closing
Date), to the accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholder of their obligations
hereunder and to the following additional conditions precedent:



     (a) Accountants’ Comfort Letter. The Underwriters shall have received letters, dated,
respectively, the date hereof and each Closing Date, of KPMG LLP confirming that they are a
registered public accounting firm and independent public accountants within the meaning of the
Securities Laws and substantially in the form of Schedule C hereto (except that, in any letter
dated a Closing Date, the specified date referred to in Schedule C hereto shall be a date no more
than three days prior to such Closing Date).



     (b) Filing of Prospectus. The Final Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) hereof. Prior to such Closing Date, no
stop order suspending the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Selling Stockholder, the Company or the Underwriters, shall be contemplated by the
Commission.



     (c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event involving a prospective
change, in the condition (financial or otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the
Underwriters, is material and adverse and makes it impractical or inadvisable to market the Offered
Securities; (ii) any downgrading in the rating of any debt securities of the Company by any
“nationally recognized statistical rating organization” as such term is defined for purposes of
Rule 436(g) (as in effect on July 20, 2010), or any public announcement that any



 









 




such organization has under surveillance or review its rating of any debt securities or
preferred stock of the Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S.
or international financial, political or economic conditions or currency exchange rates or exchange
controls the effect of which is such as to make it, in the judgment of the Underwriters,
impractical to market or to enforce contracts for the sale of the Offered Securities, whether in
the primary market or in respect of dealings in the secondary market; (iv) any suspension or
material limitation of trading in securities generally on the New York Stock Exchange or NASDAQ, or
any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of
trading of any securities of the Company on any exchange or in the over-the-counter market; (vi)
any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major
disruption of settlements of securities, payment or clearance services in the United States or any
other country where such securities are listed or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration of war by Congress or
any other national or international calamity or emergency if, in the judgment of the Underwriters,
the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is
such as to make it impractical or inadvisable to market the Offered Securities or to enforce
contracts for the sale of the Offered Securities.




     (d) Opinion of Counsel for the Company. The Underwriters shall have received an opinion,
dated such Closing Date, of Wilson Sonsini Goodrich & Rosati professional corporation, counsel for
the Company, substantially in the form of Schedule D hereto.



     (e) Opinion of Counsel for Selling Stockholder. The Underwriters shall have received
opinions, dated such Closing Date, of Dechert LLP, United States counsel, and Harney Westwood &
Riegels, British Virgin Islands counsel, to the Selling Stockholder, substantially in the forms of
Schedules E-1 and E-2 hereto, respectively.



     (f) Opinion of Counsel for Underwriters. The Underwriters shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, such opinion or opinions and letter,
dated such Closing Date, with respect to such matters as the Underwriters may require, and the
Selling Stockholder and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.



     (g) Officers’ Certificate. The Underwriters shall have received a certificate, dated such
Closing Date, of an executive officer of the Company and a principal financial or accounting
officer of the Company in which such officers shall state that: the representations and warranties
of the Company in this Agreement are true and correct; the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the best of their knowledge
and after reasonable investigation, are contemplated by the Commission; and, subsequent to the date
of the most recent financial statements in the General Disclosure



 









 




Package, there has been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its subsidiaries taken as a whole
except as set forth in the General Disclosure Package or as described in such certificate.




     (h) Chief Financial Officer’s Certificate. The Underwriters shall have received on the date
hereof and on and as of each Closing Date a certificate of the chief financial officer of the
Company, substantially in the form of Schedule F hereto.



     (i) Lock-Up Agreement. On or prior to the date hereof, the Underwriters shall have received a
lockup letter from the Selling Stockholder in the form delivered to the Underwriters.



     (j) To avoid a 28% backup withholding tax the Selling Stockholder will deliver to the
Underwriters a properly completed and executed United States Treasury Department Form W-8IMY (or
other applicable form or statement specified by Treasury Department regulations in lieu thereof).



     The Selling Stockholder and the Company will furnish the Underwriters with such conformed
copies of such opinions, certificates, letters and documents as the Underwriters reasonably
request. The Underwriters may in their sole discretion waive compliance with any conditions to
their obligations hereunder, whether in respect of the Optional Closing Date or otherwise.



     8. Indemnification and Contribution. (a) Indemnification of Underwriters. The Company will
indemnify and hold harmless the Underwriters, their partners, members, directors, officers,
employees, agents, affiliates and each person, if any, who controls any of the Underwriters within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified
Party”), against any and all losses, claims, damages or liabilities, joint or several, to which
such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any part of the Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending against any loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the
enforcement of this provision with respect to any of the above as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged



 









 




omission from any of such documents in reliance upon and in conformity with written
information furnished to the Company by the Selling Stockholder or the Underwriters specifically
for use therein, it being understood and agreed that the only such information furnished by the
Selling Stockholder consists of the information described as such in subsection (b) below and the
only such information furnished by the Underwriters consists of the information described as such
in subsection (c) below.




     (b) Indemnification of Underwriters and Company by Selling Stockholder. The Selling
Stockholder will indemnify and hold harmless each Indemnified Party and the Company, each of its
directors and each of its officers who signs the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act (a “Company Indemnified Party”) against any and all losses, claims, damages or liabilities,
joint or several, to which such Indemnified Party or Company Indemnified Party may become subject,
under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact contained
in any part of any Registration Statement at any time, any Statutory Prospectus as of any time, the
Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or alleged omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Indemnified Party and Company
Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party or
Company Indemnified Party in connection with investigating or defending against any loss, claim,
damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party or Company Indemnified Party is a party thereto), whether threatened or
commenced, and in connection with the enforcement of this provision with respect to the above as
such expenses are incurred; in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by the Selling Stockholder
specifically for use therein, it being understood and agreed that the only such information
furnished by the Selling Stockholder consists of the following information in the Registration
Statement, the General Disclosure Package and the Final Prospectus: the Selling Stockholder
information appearing under the caption “Selling Stockholder.”



     (c) Indemnification of Company and Selling Stockholder. The Underwriters will indemnify and
hold harmless the Company, each of its directors and each of its officers who signs a Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the Selling Stockholder (each, an “Underwriter
Indemnified Party”) against any losses, claims, damages or liabilities to which such Underwriter
Indemnified Party may become subject, under the Act, the Exchange Act, or other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement at any time, any
Statutory Prospectus at any time, the Final Prospectus or any Issuer Free Writing Prospectus or
arise out of or are based upon the omission or the alleged omission of



 









 




a material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Underwriters specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred by the Underwriter
Indemnified Party in connection with investigating or defending against any such loss, claim,
damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based upon any
such untrue statement or omission, or any such alleged untrue statement or omission as such
expenses are incurred, it being understood and agreed that the only such information furnished by
the Underwriters consists of the following information in the Final Prospectus furnished on behalf
of the Underwriters: the concession figure appearing in the fourth paragraph under the caption
“Underwriting” and the information contained in the tenth and eleventh paragraphs under the caption
“Underwriting,” relating to passive market making and stabilization activities.




     (d) Actions Against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under subsection (a), (b) or
(c) above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a),
(b) or (c) above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under subsection (a), (b) or (c) above. In case any such
action is brought against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability on any claims that
are the subject matter of such action 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 an indemnified party.



     (e) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)



 









 




above (i) in such proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Stockholder on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company and the Selling
Stockholder on the one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Selling Stockholder bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company, the Selling Stockholder or
the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as
a result of the losses, claims, damages or liabilities referred to in the first sentence of this
subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or claim which is the
subject of this subsection (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint. The Company, the Selling Stockholder and
the Underwriters agree that it would not be just and equitable if contribution pursuant to this
Section 8(e) were determined by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in this Section 8(e). Nothing in this
paragraph shall affect any previous fee sharing or reimbursement agreement between the Company and
the Selling Stockholder relating to fees and expenses arising from the transactions contemplated by
this Agreement.




     9. Default of Underwriters. If any Underwriter defaults in its obligations to purchase
Offered Securities hereunder on either the First or Optional Closing Date and the aggregate number
of shares of Offered Securities that such defaulting Underwriter agreed but failed to purchase does
not exceed 10% of the total number of shares of Offered Securities that the Underwriters are
obligated to purchase on such Closing Date, the non-defaulting Underwriter may make arrangements
satisfactory to the Selling Stockholder for the purchase of such Offered Securities by other
persons but if no such arrangements are made by such Closing Date, the non-defaulting Underwriter
shall be obligated to purchase the Offered Securities that such defaulting Underwriter agreed but
failed to purchase on such Closing Date. If any Underwriter so defaults and the aggregate number of
shares of Offered Securities with respect to which such default occurs exceeds 10% of the total
number of shares of Offered Securities that the Underwriter is



 









 




obligated to purchase on such Closing Date and arrangements satisfactory to the non-defaulting
Underwriter and the Selling Stockholder for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will terminate without
liability on the part of the non-defaulting Underwriter, the Company or the Selling Stockholder,
except as provided in Section 8 (provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As used in this
Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.




     10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Selling Stockholder, of the
Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriters, the Selling Stockholder, the Company or
any of their respective representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9 hereof, the Selling Stockholder will reimburse
the Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered Securities, and the
respective obligations of the Company, the Selling Stockholder and the Underwriters pursuant to
Section 8 hereof shall remain in effect. In addition, if any Offered Securities have been
purchased hereunder, the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect.



     11. Notices. All communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed or delivered and confirmed to the Underwriters at Eleven Madison Avenue, New York,
N.Y. 10010-3629, Attention: LCD-IBD, with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, Four
Times Square, New York, New York 10036, Attention: Stacy Kanter, or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at 56 Top Gallant Road, Stamford, CT 06902,
Attention: Lew Schwartz, with a copy to Wilson, Sonsini, Goodrich & Rosati, 1700 K Street, NW,
Washington, DC 20006, Attention: Robert Sanchez; or, if sent to the Selling Stockholder, will be
mailed, delivered or telegraphed and confirmed to Allison Bennington at 425 Pacific Avenue,
4th Floor, San Francisco, California, 94133, with a copy to Dechert LLP, Cira Centre,
2929 Arch Street, Philadelphia, PA, 19104, Attention: Christopher G. Karras; provided, however,
that any notice to any Underwriter pursuant to Section 8 will be mailed or delivered and confirmed
to such Underwriter.



     12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.



 









 





     13. Counterparts. This Agreement may be executed by facsimile or other electronic signatures
in any number of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.



     14. Absence of Fiduciary Relationship. The Company and the Selling Stockholder acknowledge
and agree that:



     (a) No Other Relationship. The Underwriters have been retained solely to act as underwriters
in connection with the sale of the Offered Securities and that no fiduciary, advisory or agency
relationship between the Company or the Selling Stockholder, on the one hand, and the Underwriters,
on the other, has been created in respect of any of the transactions contemplated by this Agreement
or the Final Prospectus, irrespective of whether the Underwriters have advised or is advising the
Company or the Selling Stockholder on other matters;



     (b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Selling Stockholder following discussions and arms-length
negotiations with the Underwriters. The Company and the Selling Stockholder are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement;



     (c) Absence of Obligation to Disclose. The Company and the Selling Stockholder have been
advised that the Underwriters and their affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company or the Selling Stockholder and
that the Underwriters have no obligation to disclose such interests and transactions to the Company
or the Selling Stockholder by virtue of any fiduciary, advisory or agency relationship; and



     (d) Waiver. The Company and the Selling Stockholder waive, to the fullest extent permitted by
law, any claims they may have against the Underwriters for breach of fiduciary duty or alleged
breach of fiduciary duty and agree that the Underwriters shall have no liability (whether direct or
indirect) to the Company or the Selling Stockholder in respect of such a fiduciary duty claim or to
any person asserting a fiduciary duty claim on behalf of or in right of the Company, including
stockholders, employees or creditors of the Company.



     15. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.



     (a) The Company hereby submits to the non-exclusive jurisdiction of the Federal and state
courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby. The



 









 




Company irrevocably and unconditionally waives any objection to the laying of venue of any
suit or proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby in Federal and state courts in the Borough of Manhattan in the City of New York and
irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any
such suit or proceeding in any such court has been brought in an inconvenient forum; and




     (b) The Selling Stockholder hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby. The Selling
Stockholder irrevocably and unconditionally waives any objection to the laying of venue of any suit
or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby
in Federal and state courts in the Borough of Manhattan in the City of New York and irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such suit or
proceeding in any such court has been brought in an inconvenient forum. The Selling Stockholder
irrevocably and unconditionally appoints VA Partners I, LLC, with offices at 435 Pacific Avenue,
Fourth Floor, San Francisco, CA 94133, as its agent of service in the United States in any suit
described in this preceding paragraph. The Selling Stockholder agrees that service of process in
any such suit may be made upon it at the office of its agent. The Selling Stockholder waives, to
the fullest extent permitted by law, any other requirements of or objections to personal
jurisdiction with respect thereto. The Selling Stockholder represents and warrants that its agent
has agreed to act as agent for service of process, and each agrees to take any and all action,
including the filing of any and all documents and instruments, that may be necessary to continue
such appointment in full force and effect.



     If the foregoing is in accordance with the Underwriters’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement among the Selling Stockholder, the Company and the several Underwriters in
accordance with its terms.



 









 





	 	 	 	 	 	 	 

	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	 
	 	 	ValueAct Capital Master Fund, L.P.
	 
	 	 	 	 	 	 
	 	 	 	 	By: VA Partners I, LLC, its General 
	 	 	Partner
	 
	 	 	 	 	 	 
	 

	 	By
		/s/ G. Mason Morfit		 
	 	 	 	 	 
	 	 	 	 	Vice President
	 
	 	 	 	 	 	 
	 	 	Gartner, Inc.
	 

	 	 	 	By
	 	/s/ Christopher J. Lafond
	 

	 	 	 	 	 	 
	 	 	 	 	Executive Vice
President and
Chief Financial Officer






 









 





	 	 	 	 	 
	 	The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the date first

above written.





Credit Suisse Securities (USA) LLC

 	 
	 	By:  	 /s/ James Disney	 
	 	 	Name:  	James Disney	 
	 	 	Title:  	Director	 
	 
	 	Goldman, Sachs & Co.

 	 
	 	By:  	 /s/ Goldman, Sachs & Co.	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





SCHEDULE A




	 	 	 	 	 
	 	 	Number of
	 	 	Firm Securities
	Underwriter	 	to be Purchased
	Credit Suisse Securities (USA) LLC
	 	 	4,800,000	 
	Goldman, Sachs & Co.
	 	 	3,200,000	 
	 
	 	 	 	 
	Total
	 	 	8,000,000	 
	 
	 	 	 	 






30









 





SCHEDULE B





	1.	 	General Use IssuerFree Writing Prospectuses (included in the General Disclosure Package)
	 
	 	 	“General Use Issuer Free Writing Prospectus” includes each of the following documents:
	 
	 	 	1. None.
	 
	2.	 	Other Information Included in the General Disclosure Package
	 
	 	 	The following information is also included in the General Disclosure Package:
	 
	 	 	1. The initial price to the public of the Offered Securities: $35.50 per share





31









 





SCHEDULE C




[Form of Comfort Letter]








32









 








SCHEDULE D




[Form of Opinion of Company’s Counsel]








33









 








SCHEDULE E-1




[Form of Opinion of Selling Stockholder’s United States Counsel]








34









 








SCHEDULE E-2




[Form of Opinion of Selling Stockholder’s BVI Counsel]







35









 








SCHEDULE F




[Form of Chief Financial Officer’s Certificate]





36