UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event
reported): September 9, 2014 (September 4, 2014)
ARLINGTON ASSET INVESTMENT CORP.
(Exact name of Registrant as specified in
its charter)
Virginia |
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54-1873198 |
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001-34374 |
(State or Other Jurisdiction
of Incorporation or Organization) |
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(I.R.S. Employer Identification No.) |
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(Commission File Number) |
1001 Nineteenth Street North
Arlington, VA 22209
(Address of principal executive offices)
(Zip code)
(703) 373-0200
(Registrant’s telephone number including
area code)
N/A
(Former name or former address, if changed
from last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01. | Entry into a Material Definitive Agreement. |
On September 4, 2014, Arlington Asset Investment
Corp. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Credit
Suisse Securities (USA) LLC, Barclays Capital Inc., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, and Keefe, Bruyette
& Woods, Inc., as representatives of the several underwriters named therein (the “Underwriters”), relating to the
offer and sale of 2,750,000 shares of the Company’s Class A common stock, par value $0.01 per share (“Class A Common
Stock”), at a public offering price of $27.61 per share. In addition, the Company granted the Underwriters a 30-day option
to purchase up to 412,500 additional shares of Class A Common Stock (the “Option”). On September 8, 2014, the Underwriters
exercised the Option to purchase 412,500 additional shares of Class A common stock. Closing of the offering of 3,162,500 shares
of Class A Common Stock occurred on September 9, 2014.
The Underwriting Agreement contains customary
representations, warranties and covenants of the Company, indemnification rights and obligations of the parties and termination
provisions. Pursuant to the Underwriting Agreement, the Company agreed to indemnify the Underwriters against certain
specified types of liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”),
to contribute to payments the Underwriters may be required to make in respect of these liabilities and to reimburse the Underwriters
for certain expenses. In the ordinary course of business the Underwriters or their affiliates may in the future engage in various
financing, commercial banking and investment banking services with, and provide financial advisory services to, the Company and
its affiliates for which they may receive customary fees and expenses.
The shares of Class A Common Stock will be issued pursuant to
the Company’s shelf registration statement on Form S-3 (File No. 333-193478) (the “Registration Statement”),
which was declared effective by the Securities and Exchange Commission on February 5, 2014.
The foregoing description of the material terms of the Underwriting
Agreement is qualified in its entirety by reference to the full text of the Underwriting Agreement, a copy of which is attached
hereto as Exhibit 1.1 and incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
A copy of the opinion of Hunton & Williams LLP with respect
to the legality of the issuance and sale of Class A Common Stock in the offering is filed herewith, and thereby automatically incorporated
by reference into the Registration Statement, in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the
Securities Act.
| (d) | Exhibits. The following exhibits are being
filed herewith: |
Exhibit No. |
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Description |
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1.1 |
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Underwriting Agreement, dated as of September 4, 2014, among the Company and Credit Suisse Securities (USA) LLC, Barclays Capital Inc., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC and Keefe, Bruyette & Woods, Inc., as representatives of the several underwriters named therein. |
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5.1 |
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Opinion of Hunton & Williams LLP regarding legality of shares. |
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23.1 |
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Consent of Hunton & Williams LLP (included in Exhibit 5.1). |
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
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ARLINGTON ASSET INVESTMENT CORP. |
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Date: September 9, 2014 |
By: |
/s/ Kurt R. Harrington |
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Name: |
Kurt R. Harrington |
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Title: |
Executive Vice President, Chief Financial Officer and Treasurer |
EXHIBIT INDEX
Exhibit No. |
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Description |
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1.1 |
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Underwriting Agreement, dated as of September 4, 2014, among the Company and Credit Suisse Securities (USA) LLC, Barclays Capital Inc., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC and Keefe, Bruyette & Woods, Inc., as representatives of the several underwriters named therein. |
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5.1 |
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Opinion of Hunton & Williams LLP regarding legality of shares. |
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23.1 |
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Consent of Hunton & Williams LLP (included in Exhibit 5.1). |
Exhibit 1.1
ARLINGTON ASSET INVESTMENT CORP.
2,750,000 Shares of Class A Common
Stock *
UNDERWRITING AGREEMENT
September 4, 2014
Credit Suisse Securities (USA) LLC
Barclays Capital Inc.
Morgan Stanley & Co. LLC
RBC Capital Markets, LLC
Keefe, Bruyette & Woods, Inc.
As Representatives of the Several Underwriters
named in Schedule I attached hereto
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o RBC Capital Markets, LLC
Three World Financial Center
200 Vesey Street, 8th Floor
New York, New York 10281
c/o Keefe, Bruyette & Woods, Inc.
787 7th Avenue, 4th Floor
New York, New York 10019
Ladies and Gentlemen:
Arlington Asset Investment
Corp., a Virginia corporation (the “Company”), proposes to issue and sell, subject to the conditions hereinafter
stated, to the several Underwriters named in Schedule I attached hereto (the “Underwriters”) an
aggregate of 2,750,000 shares (the “Firm Securities”) of its Class A common stock, $.01 par value per share
(“Class A Common Stock”), pursuant to and in accordance with the terms and conditions of this underwriting agreement
(this “Agreement”) in connection with the public offering (the “Offering”) and sale of such
Firm Securities.
| * | Not including the option to purchase additional shares. |
Credit Suisse Securities
(USA) LLC, Barclays Capital Inc., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC and Keefe and Bruyette & Woods, Inc.
shall act as the representatives (the “Representatives”) of the several Underwriters. In addition, the Company
proposes to issue and sell to the Underwriters, upon the terms and conditions set forth in Section 3 hereof, an aggregate of up
to 412,500 additional shares of Class A Common Stock (the “Optional Securities”). The Firm Securities and the
Optional Securities are, collectively, hereinafter called the “Securities.”
This is to confirm the agreement concerning
the purchase of the Securities from the Company by the Underwriters.
| 1. | Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, each Underwriter that: |
(a) The
Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-3 (File No. 333-193478) (the “Shelf Registration Statement”) under the Securities Act
of 1933, as amended (the “Securities Act”), and the rules and regulations (the “Rules and Regulations”)
of the Commission promulgated thereunder, and such amendments to such registration statement as may have been required to the date
of this Agreement. The Shelf Registration Statement has been declared effective by the Commission. The Shelf Registration Statement
at any given time, including amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act at such time and the documents
and information otherwise deemed to be a part thereof or included therein by Rule 430B under the Securities Act (the “Rule 430B
Information”) or otherwise pursuant to the Rules and Regulations at such time, are collectively herein called the “Registration
Statement.” The Shelf Registration Statement originally became effective February 5, 2014 (the “Original Registration
Statement”). Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is
called the “Rule 462(b) Registration Statement” and, from and after the date and time of filing of the Rule 462(b)
Registration Statement, the term “Registration Statement” shall include the Rule 462(b) Registration Statement.
The Shelf Registration
Statement includes a prospectus dated February 5, 2014 (the “Base Prospectus”). Each preliminary prospectus
supplement to the Base Prospectus (including the Base Prospectus as so supplemented) that describes the Securities and the offering
thereof, that omitted the Rule 430B Information and that was used prior to the filing of the final prospectus supplement referred
to in the following sentence is herein called a “Preliminary Prospectus.” Promptly after execution and delivery
of this Agreement, the Company will prepare and file with the Commission a final prospectus supplement to the Base Prospectus relating
to the Securities and the offering thereof in accordance with the provisions of Rule 430B and Rule 424(b) of the Rules
and Regulations. Such final supplemental form of prospectus (including the Base Prospectus as so supplemented), in the form filed
with the Commission pursuant to Rule 424(b), is herein called the “Prospectus.” Any reference herein to
the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act as of the date of such prospectus.
For purposes of this
Agreement, all references to the Registration Statement, the Rule 462(b) Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information that is “described,” “contained,”
“included” or “stated” in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or
the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules
and other information that is incorporated by reference in or otherwise deemed by the Rules and Regulations to be a part of or
included in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to mean and include the subsequent filing of any document under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), prior to, in the case of the Preliminary Prospectus, the Time
of Sale (defined below) and, in the case of the Prospectus, prior to the termination of this offering, and any document that is
deemed to be incorporated therein by reference or otherwise deemed by the Rules and Regulations to be a part thereof.
(b) The
Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental
information in connection with the Registration Statement or the transactions contemplated hereunder. No stop order suspending
the effectiveness of the Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated or threatened by the Commission. As used herein, the phrase “to the
knowledge of the Company” and similar phrases means such knowledge after due inquiry.
(c) The
Time of Sale Disclosure Package (as defined below) at the Time of Sale (as defined below) complied in all material respects with
the requirements of the Securities Act and the Rules and Regulations and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from
the Time of Sale Disclosure Package made in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives specifically for use therein; it being understood and agreed that the only such information
furnished by the Representatives consists of the information described as such in Section 13 hereof.
(d) Each
part of the Registration Statement, at the time such part became effective (including each deemed effective date with respect to
the Representatives pursuant to Rule 430B or otherwise under the Securities Act), at all other subsequent times until the
expiration of the Prospectus Delivery Period (as defined below), and at the Closing Date, and the Prospectus, at the time of filing
or the time of first use within the meaning of the Rules and Regulations, at all subsequent times until expiration of the Prospectus
Delivery Period, and at the Closing Date complied and will comply in all material respects with the applicable requirements and
provisions of the Securities Act, the Rules and Regulations and the Exchange Act. Each part of the Registration Statement at the
time such part became effective, did not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended or supplemented, as
of its date, or the time of first use within the meaning of the Rules and Regulations, at all subsequent times until the expiration
of the Prospectus Delivery Period, and at the Closing Date did not and will not contain any untrue statement of a material fact
or 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. The representations and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives specifically for use therein; it being
understood and agreed that the only such information furnished by the Representatives consists of the information described as
such in Section 13 hereof.
(e) Neither
(A) any Issuer General-Use Free Writing Prospectus(es) issued at or prior to the Time of Sale and set forth on Schedule
II attached hereto, the pricing and other information set forth on Schedule III attached hereto and the Statutory
Prospectus at the Time of Sale, all considered together (collectively, the “Time of Sale Disclosure Package”),
nor (B) any individual Issuer Limited-Use Free Writing Prospectus, when considered together with the Time of Sale Disclosure
Package, includes or included as of the Time of Sale any untrue statement of a material fact or omits or omitted as of the Time
of Sale 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 made in reliance upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use therein; it being understood and agreed that the only such
information furnished by any Underwriter through the Representatives consists of the information described as such in Section 13
hereof. As used in this paragraph and elsewhere in this Agreement:
(i) “Time
of Sale” means 8:30 a.m. (New York time) on the date of this Agreement.
(ii) “Statutory
Prospectus” means the Base Prospectus, as amended and supplemented immediately prior to the Time of Sale, including any
document incorporated by reference therein and any prospectus supplement deemed to be a part thereof. For purposes of this definition,
Rule 430B Information contained in a form of prospectus that is deemed retroactively to be a part of the Registration Statement
shall be considered to be included in the Statutory Prospectus as of the actual time that such form of prospectus is filed with
the Commission pursuant to Rule 424(b) under the Securities Act.
(iii) “Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 under the
Securities Act, relating to the Securities that (1) is required to be filed with the Commission by the Company, (2) is
exempt from filing pursuant to Rule 433(d)(5)(i) under the Securities Act because it contains a description of the Securities
or of the offering that does not reflect the final terms, or (3) is a “bona fide electronic road show,”
as defined in Rule 433 under the Securities Act, in each case 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) under the Securities
Act.
(iv) “Issuer
General-Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution
to prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 under the Securities
Act), as evidenced by its being specified in Schedule II attached hereto.
(v) “Issuer
Limited-Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General-Use Free
Writing Prospectus.
(f) (A) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the Prospectus Delivery Period or until
any earlier date that the Company notified or notifies the Representatives as prescribed in Section 12 hereof, when taken together
with the information contained in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, did not, does
not and will not contain any untrue statement of a material fact or 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. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing Prospectus made in reliance upon and in conformity with written
information furnished in writing to the Company by any Underwriter through the Representatives specifically for use therein; it
being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of
the information described as such in Section 13 hereof.
(B)(i) At the earliest
time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and (ii) at the date hereof, the Company
was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act (without taking account
of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible
issuer), nor an “excluded issuer” as defined in Rule 164 under the Securities Act.
(C) Each Issuer Free
Writing Prospectus satisfied, as of its issue date and at all subsequent times through the Prospectus Delivery Period, all other
conditions to use thereof as set forth in Rules 164 and 433 under the Securities Act.
(g) The
Company has not distributed and will not distribute, prior to the later of the Option Closing Date (as defined below) and the completion
of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the
Securities other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to
by the Representatives and listed in Schedule II attached hereto or the Registration Statement.
(h) PricewaterhouseCoopers
LLP (“PwC”), whose report appears in the Registration Statement, and is included in the Time of Sale Disclosure
Package and the Prospectus, are independent certified public accountants as required by the Securities Act, the Rules and Regulations
and the Public Company Accounting Oversight Board (including the rules and regulations promulgated by such entity, the “PCAOB”).
Except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, PwC has not during the
periods covered by the financial statements included in the Registration Statement and in the Time of Sale Disclosure Package and
Prospectus, provided to the Company any non-audit services, as such term is defined in Section 10A(g) of the Exchange Act. The
financial statements and schedules (including the related notes) included in the Registration Statement, the Time of Sale Disclosure
Package and the Prospectus present fairly, in all material respects, the financial condition, the results of the operations and
changes in financial condition of the entities purported to be shown thereby at the dates or for the periods indicated and have
been prepared in accordance with generally accepted accounting principles as applied in the United States on a consistent basis
(“GAAP”) throughout the periods indicated. All adjustments necessary for a fair presentation of results for
such periods have been made. The selected financial, operating and statistical data set forth or incorporated by reference in the
Preliminary Prospectus and the Prospectus under the captions “Selected Financial Data” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” fairly present, in all material respects, when
read in conjunction with the Company’s financial statements and the related notes and schedules and on the basis stated in
the Registration Statement, the information set forth therein.
(i) Each
of the Company and each “significant subsidiary” (as that term is defined in Rule 1-02 of Regulation S-X of the Commission)
of the Company (each, a “Subsidiary” and collectively, the “Subsidiaries”) has been duly
incorporated or organized and is validly existing as a corporation or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its organization, with requisite power and authority to own, lease or operate its respective
properties and conduct its respective business as presently conducted and as described in the Time of Sale Disclosure Package and
the Prospectus, and is duly qualified to do business and is in good standing as a foreign corporation or limited liability company,
as the case may be, in each jurisdiction in which the character of the business conducted by it or the location of the properties
owned or leased by it makes such qualification necessary and, except where any failure to do so could not reasonably be expected
to result in a material adverse effect on the condition (financial or otherwise), business, prospects, properties or results
of operations of the Company and the Subsidiaries taken as a whole (a “Material Adverse Effect”); each of the
Company and the Subsidiaries is in possession of and operating in compliance with all necessary authorizations, licenses, permits,
consents, certificates and orders required for the conduct of its business, all of which are valid and in full force and effect,
except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and neither the Company nor
any of the Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such authorization,
license, permit, consent, certificate or order which, individually or in the aggregate, if the subject of an unfavorable decision,
could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(j) The
capitalization of the Company is as set forth under the caption “Capitalization” in the Time of Sale Disclosure
Package and Prospectus, and the Class A Common Stock conforms to the description thereof contained under the caption “Description
of Capital Stock” in the Time of Sale Disclosure Package and Prospectus; the outstanding shares of capital stock have
been duly authorized and validly issued and are fully paid and nonassessable. There are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of capital stock pursuant to the Company’s
Amended and Restated Articles of Incorporation, as amended, or Amended and Restated Bylaws, as amended, or any agreement or other
instrument to which the Company or any of the Subsidiaries is a party or by which any of them may be bound other than those described
in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus. None of the outstanding shares of the Company’s
capital stock were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for
or purchase securities 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 other than those specifically described in the Registration Statement, the Time of Sale Disclosure Package
and the Prospectus. The Company has no obligations to register for resale under the Securities Act any of its outstanding securities,
including, but not limited to, any that would, as result of the filing of the Registration Statement or the offering or sale of
the Securities as contemplated by this Agreement, give rise to any rights for or relating to the registration of any shares of
Class A Common Stock or other securities. All of the outstanding limited liability company or other equity interests of each Subsidiary
have been duly authorized and validly issued, are fully paid and nonassessable and are owned directly by the Company, free and
clear of any claim, lien, encumbrance or security interest. There are no authorized or outstanding options, warrants, preemptive
rights, rights of first refusal or other rights to purchase, or other interests convertible into or exchangeable or exercisable
for, any limited liability company or other equity interests of any Subsidiary other than those described in the Registration Statement,
the Time of Sale Disclosure Package and the Prospectus.
(k) Since
December 31, 2013, except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and Prospectus or otherwise
disclosed to the Representatives in writing, (A) neither the Company nor any of the Subsidiaries has incurred any liabilities or
obligations, direct or contingent, nor entered into any transactions not in the ordinary course of business, which in either case
are material to the Company or such Subsidiary, as the case may be; (B) there has not been any Material Adverse Effect nor any
development or event that could reasonably be expected to have a Material Adverse Effect; 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.
(l) Neither
the Company nor any of the Subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of or
in default under, nor will the execution, delivery or performance by the Company hereof or the consummation of the transactions
contemplated hereby by the Company result in a violation of, or constitute a default under, (A) the Amended and Restated Articles
of Incorporation, as amended, or the Amended and Restated Bylaws, as amended, of the Company or the organizational documents of
any of the Subsidiaries, (B) any agreement, contract, mortgage, deed of trust, loan agreement, note, lease, indenture or other
instrument, to which the Company or any of the Subsidiaries is a party or by which any of them is bound, or to which any of their
properties is subject, or (C) any law, statute, ordinance, rule, administrative regulation, decree, ruling or order of any court,
or any governmental agency or body having jurisdiction over the Company, the Subsidiaries or any of their properties, except in
the case of clauses (B) and (C) for such violation or default which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The execution, delivery or performance by the Company hereof or the consummation of
the transactions contemplated hereby by the Company will not result in the creation or imposition of any lien, charge, claim or
encumbrance upon any property or asset of the Company or any of the Subsidiaries, except for such liens, charges, claims or encumbrances
that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(m) This
Agreement has been duly authorized, executed and delivered by the Company and, when executed and delivered by the Representatives
on behalf of the Underwriters, will constitute a legal, valid and binding agreement of the Company that is enforceable against
the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar legal
requirements affecting the enforcement of creditors’ rights generally and by general principles of equity and except to the
extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations
in respect thereof.
(n) The
Securities to be purchased by the Underwriters from the Company have been duly authorized and, when issued and duly delivered by
the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable. The issuance
of the Securities pursuant to this Agreement will not be subject to any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company.
(o) Neither
the Company nor any Subsidiary owns any real property. The Company and the Subsidiaries have good title to all personal property,
if any, owned by them, in each case clear of all liens, encumbrances and defects except such as are described or referred to in
the Registration Statement, the Time of Sale Disclosure Package and Prospectus or such as could not reasonably be expected to have
a Material Adverse Effect; and any real property and buildings held under lease by the Company and the Subsidiaries are held by
them under valid, existing and enforceable leases with such exceptions (A) as are not material and do not interfere with the use
made or proposed to be made of such property and buildings by the Company or such Subsidiaries or (B) as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of
equity.
(p) Except
as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, there is no litigation or governmental
proceeding to which the Company or any of the Subsidiaries is a party or to which any property of the Company or any of the Subsidiaries
is subject or which is pending or, to the knowledge of the Company, threatened against the Company which individually or in the
aggregate could reasonably be expected to result in a Material Adverse Effect, which would materially and adversely affect the
consummation of the transactions contemplated by this Agreement or which is required to be disclosed in the Time of Sale Disclosure
Package and Prospectus.
(q) Other
than permitted activity pursuant to Regulation M and Rule 10b-18 under the Exchange Act, the Company has not taken, directly or
indirectly, any action designed to cause or result in, or which has constituted or which could reasonably be expected to constitute,
the stabilization or manipulation of the price of the shares of Class A Common Stock to facilitate the sale or resale of the Securities.
(r) The
Company and the Subsidiaries have filed all material federal, state and foreign income tax returns, and all such tax returns are
complete and correct in all material respects, and the Company and the Subsidiaries have not failed to pay any material taxes which
were payable pursuant to said returns or any assessments with respect thereto. The Company has no knowledge of any tax deficiency
which has been or is likely to be threatened or asserted against the Company or the Subsidiaries. Except as disclosed in the Time
of Sale Disclosure Package or the Prospectus, there is currently no material limitation on the utilization of net operating loss
carryforwards, capital loss carryforwards, built-in losses, tax credits or similar items of the Company or any of its Subsidiaries
under Sections 269, 382, 383, 384 or 1502 of the Internal Revenue Code of 1986, as amended (the “Code”),
and the Treasury Regulations thereunder and comparable provisions of state, local or foreign Law.
(s) Except
as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, the Company maintains a system
or systems of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance
with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of
the consolidated financial statements of the Company in conformity with GAAP and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, since the date of the
most recent evaluation of such system of internal accounting controls, there has been no material change in internal control over
financial reporting, including any corrective actions with regard to significant deficiencies or material weaknesses.
(t) The
Company has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act).
Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, to the Company’s
knowledge, such disclosure controls and procedures are effective in timely alerting the Company’s principal executive officer
and principal financial officer to information required to be disclosed by the Company in its periodic reports under the Exchange
Act.
(u) The
Company maintains insurance of the types and in the amounts as are, in the reasonable opinion of management, adequate for its business,
all of which insurance is in full force and effect. The Company has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that could not reasonably be expected to have a Material Adverse Effect.
(v) Neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any employees or agents of the Company or any of
the Subsidiaries, has at any time during the last five years (A) made any unlawful contribution to any candidate for foreign
office, or failed to disclose fully any contribution in violation of law, or (B) made any payment to any foreign, federal
or state governmental officer or official or other person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction thereof.
(w) The
Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof
as described under the caption “Use of Proceeds” in the Time of Sale Disclosure Package or the Prospectus will
not be, required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended.
(x) The
Class A Common Stock is listed on the New York Stock Exchange (the “NYSE”) and the Company is currently in compliance
with all continued listing standards and corporate governance standards of the NYSE and the Company has no knowledge of any proceeding
intended to suspend or terminate listing of its Class A Common Stock on the NYSE. The Class A Common Stock is registered under
Section 12(b) of the Exchange Act.
(y) The
Company is in material compliance with all applicable provisions of the Sarbanes-Oxley Act of 2002 (“SOX”) that
are currently effective and the applicable rules and regulations promulgated in connection therewith.
(z) No
consent, approval, authorization or order of, or filing with, any governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection with the issuance and sale of the Securities by the Company, except
such as have been obtained or made, or will be obtained or made on or before the First Closing Date, under the Securities Act and
such as may be required by the NYSE, the Financial Industry Regulatory Authority (“FINRA”) or under state securities
laws or the laws of any foreign jurisdiction.
(aa) The
Company has full corporate power and authority to enter into the transactions contemplated by this Agreement.
(bb) The
Company is not presently doing business with the government of Cuba or with any person or affiliate located in Cuba.
(cc) No
labor dispute with the employees of the Company or the Subsidiaries exists or, to the knowledge of the Company, is imminent, that
could reasonably be expected to have a Material Adverse Effect.
(dd) The
Company or the Subsidiaries own or possess the right to use any trademarks, trade names, patent rights, copyrights, domain names,
licenses, approvals, trade secrets, inventions, technology, know-how and other similar rights (collectively, “Intellectual
Property Rights”) that would reasonably be deemed necessary or material to conduct its business as now conducted and
as described in the Time of Sale Disclosure Package and the Prospectus. There is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding, or claim by others challenging the rights of the Company or any of the Subsidiaries in or
to any Intellectual Property Rights. There is no pending, or to the Company’s knowledge, threatened action, suit, proceeding,
or claim by others that the Company’s or any Subsidiaries’ use of the Intellectual Property Rights infringes, misappropriates
or otherwise violates any intellectual property rights of others.
(ee) To
the knowledge of the Company, except as could not reasonably be expected to have a Material Adverse Effect, no third party has
alleged any breach by the Company or any Subsidiary of any provision of any license, contract or other agreement governing the
use by the Company or its Subsidiaries of Intellectual Property Rights owned by third parties (collectively, the “Licenses”)
and the Company is unaware of any facts that would form a reasonable basis for such a claim. Each of the Licenses is in full force
and effect and constitutes a valid and binding agreement between the parties thereto, enforceable in accordance with its terms.
Except as could not reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its Subsidiaries has
been or is currently involved in any disputes regarding the Licenses.
(ff) The
Company’s operating policies described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus
accurately reflect in all material respects the current intentions of the Company with respect to the operation of its business,
and no material deviation from such policies is currently contemplated.
(gg) There
are no business relationships or related-party transactions involving the Company or any Subsidiary or any other person required
by the Securities Act to be described in the Time of Sale Disclosure Package and the Prospectus that have not been so described.
(hh) Except
as would not, individually or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its
Subsidiaries is in violation of any federal, state, local or foreign law or regulation relating to pollution or protection of human
health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including without limitation, laws and regulations relating to emissions, discharges, releases or threatened releases
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum and petroleum products (collectively,
“Materials of Environmental Concern”), or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of Environmental Concern (collectively, “Environmental
Laws”), which violation includes, but is not limited to, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company under applicable Environmental Laws, or noncompliance with the terms
and conditions thereof, nor has the Company or any of its Subsidiaries received any written communication, whether from a governmental
authority, citizens group, employee or otherwise, that alleges that the Company or any of its Subsidiaries is in violation of any
Environmental Law; (B) there is no claim, action or cause of action filed with a court or governmental authority, no investigation
with respect to which the Company or any of its Subsidiaries has received written notice, and no written notice by any person or
entity alleging potential liability for investigatory costs, cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys’ fees or penalties arising out of, based on or resulting from the presence,
or release into the environment, of any Material of Environmental Concern at any location owned, leased or operated by the Company
or any of its Subsidiaries, now or in the past (collectively, “Environmental Claims”), pending or, to the knowledge
of the Company, threatened against the Company, any of its Subsidiaries, or any person or entity whose liability for any Environmental
Claim the Company or any of its Subsidiaries has retained or assumed either contractually or by operation of law; and (C) to
the knowledge of the Company, there are no past or present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or disposal of any Material of Environmental Concern,
that reasonably could result in a violation of any Environmental Law or form the basis of a potential Environmental Claim against
the Company, any of its Subsidiaries, or against any person or entity whose liability for any Environmental Claim the Company or
any of its Subsidiaries has retained or assumed either contractually or by operation of law.
(ii) The
Company and the Subsidiaries are in compliance in all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively,
“ERISA”). No “reportable event” (as defined under ERISA) has occurred or is reasonably expected
to occur with respect to any “pension plan” (as defined under ERISA) for which the Company or any of the Subsidiaries
would have any material liability. Neither the Company, nor any of the Subsidiaries has incurred or reasonably expects to incur
any liability under (A) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan”
or (B) Sections 412 or 4971 of the Code. Each “pension plan” for which the Company or any of the Subsidiaries
that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action
or failure to act, which would cause the loss of such qualification, the result of which would reasonably be expected to result
in a Material Adverse Effect.
(jj) There
are no outstanding loans or other extensions of credit made by the Company to any executive officer (as defined in Rule 3b-7
under the Exchange Act) or director of the Company. The Company has not taken any such action prohibited by Section 402 of SOX.
(kk) The
operations of the Company and the Subsidiaries are and have been conducted at all times in material compliance with all applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the applicable anti-money laundering statutes of jurisdictions where the Company or any Subsidiaries conduct business, the rules
and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body involving the Company or any of the Subsidiaries with respect
to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ll) Neither
the Company nor any of the Subsidiaries, nor, to the Company’s knowledge, any director, officer, employee, agent or affiliate
of the Company or any of the Subsidiaries is (A) currently the subject of any U.S. sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“Sanctions”) or (B) located, organized or resident
in the country or territory that is the subject of Sanctions.
(mm) The
statistical and market-related data included in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus
were obtained or derived from publications that are and were not at any time under the Company’s control and that the Company
reasonably and in good faith believed to be reliable and accurate as of the respective dates that such data were first included
in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus.
(nn) All
“non-GAAP financial measures” (as defined in the Rules and Regulations) included in the Registration Statement, the
Time of Sale Disclosure Package or the Prospectus comply with the requirements of Regulation G and Item 10 of Regulation S-K promulgated
under the Rules and Regulations.
(oo)
To the knowledge of the Company, no director, officer or other key employee of the Company or its Subsidiaries named in the Time
of Sale Disclosure Package intends to terminate his or her affiliation with the Company or its Subsidiaries during the next 60
days. None of the directors, officers or other key employees of the Company named in the Time of Sale Disclosure Package is subject
to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present
or proposed business activities of the Company as described in the Time of Sale Disclosure Package.
(pp) The
Company has not offered, or caused the Underwriters to offer, the Securities to any person or entity with the intention of unlawfully
influencing a journalist or publication to write or publish favorable information about the Company.
(qq) Neither
the Company, nor, to the Company’s knowledge, any affiliate of the Company, is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder (the “FCPA”), including, without limitation, giving or agreeing to give any
money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA, except for such violations that would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. The Company’s internal accounting controls and procedures are sufficient
to cause the Company to comply with the FCPA.
(rr) Except
as described in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or as contemplated by this Agreement,
there are no (A) claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting
or origination fee or commission or similar payment by the Company of any Underwriter with respect to the sale of the Securities
hereunder or (B) arrangements, agreements or understandings of the Company or any affiliate of the Company that may affect the
Underwriters’ compensation in connection with the Offering, as determined by FINRA.
(ss) To
the Company’s knowledge, no person beneficially owns 10% or more of the Company’s outstanding Class A Common Stock.
(tt)
Except with respect to the Representatives in connection with the Offering, or as described in the Registration Statement, the
Time of Sale Disclosure Package or the Prospectus, the Company has not entered into any agreement or arrangement (including, without
limitation, any consulting agreement or any other type of agreement) during the 180-day period prior to the initial filing date
of the Registration Statement, which arrangement or agreement provides for the receipt of any item of value and/or the transfer
or issuance of any warrants, options, or other securities from the Company to a FINRA member, any person associated with a member
(as defined by FINRA rules), any potential underwriters in the Offering and/or any related persons.
Any certificate signed
by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation
and warranty by the Company to each Underwriter as to the matters set forth therein.
The Company acknowledges
that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company
and counsel to the Underwriters will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents
to such reliance.
| 2. | Representations and Warranties of the Underwriters.
Each Underwriter severally represents and agrees that: |
(a) It
has not and will not use, authorize use of, refer to or participate in the planning for use of, any “free writing prospectus,”
as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission
by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other
than (A) any Issuer Free Writing Prospectus or (B) any other free writing prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Time of Sale Disclosure Package.
(b) It
will retain copies of each free writing prospectus used or referred to by it to the extent required by Rule 433 under the Securities
Act.
| 3. | Purchase of the Securities by the Underwriters. |
(a) Subject
to the terms and conditions and upon the basis of the representations, warranties and agreements herein set forth, the Company
agrees to issue and sell to each Underwriter, severally and not jointly, and each Underwriter agrees, severally and not jointly,
to purchase from the Company at a price of $27.04 per share (after giving effect to a discount of $0.57 per share), the number
of Firm Securities set forth opposite such Underwriter’s name in Schedule I attached hereto, subject to adjustments
among the Underwriters in accordance with Section 8 hereof. Each Underwriter agrees, severally and not jointly, to offer
the Firm Securities to the public as set forth in the Prospectus.
(b) The
Company hereby grants to the Representatives and its designees an option to purchase from the Company all or any portion of the
Optional Securities for a period of thirty (30) days from the date hereof at the purchase price per share set forth in Section
3(a) hereof less an amount per share equal to any dividends or distributions declared by the Company and payable on each share
of the Firm Securities but not payable on any of the Optional Securities. Optional Securities shall be purchased from the Company
for the accounts of the several Underwriters in proportion to the number of Firm Securities set forth opposite such Underwriter’s
name in Schedule I hereto, except that the respective purchase obligations of each Underwriter shall be adjusted by the
Representatives so that no Underwriter shall be obligated to purchase fractional Optional Securities. No Optional Securities shall
be sold and delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered.
4. Delivery
of and Payment for Securities. Delivery of certificates for the Firm Securities (or evidence of Securities in book entry form)
to be purchased by the Underwriters from the Company against payments for such securities and payment of the purchase price for
the Firm Securities shall be made at the offices of Hunton & Williams LLP, 200 Park Avenue, 52nd Floor, New York,
New York, 10166 (or such other place as mutually may be agreed upon) at 10:00 a.m. on the third full Business Day following the
date hereof or, if the pricing of the Firm Securities occurs after 4:30 p.m., New York City time, on the fourth full Business
Day thereafter, or at such other date as shall be determined by the Representatives and the Company (the “First Closing
Date”).
The option to purchase
Optional Securities granted in Section 3(b) hereof may be exercised during the term thereof by written notice to the Company
from the Representatives. The option may be exercised in whole or part, and if in part, the option may be exercised on up to two
occasions. Such notice shall set forth the aggregate number of Optional Securities as to which the option is being exercised and
the time and date, not earlier than either the First Closing Date or the second Business Day after the date on which the option
shall have been exercised nor later than the fifth Business Day after the date of such exercise, as determined by the Representatives,
when the Optional Securities are to be delivered (the “Option Closing Date”). Delivery and payment for such
Optional Securities is to be at the offices set forth above for delivery and payment of the Firm Securities. (The First Closing
Date and the Option Closing Date are herein individually referred to as the “Closing Date” and collectively
referred to as the “Closing Dates.”)
Delivery of certificates
for the Firm Securities (or evidence of Securities in book entry form) and the Optional Securities (or evidence of Securities in
book entry form) shall be made through the facilities of the Depository Trust Company by or on behalf of the Company to the Representatives,
for the respective accounts of the Underwriters, against payment by the Representatives, for the several accounts of the Underwriters,
of the purchase price therefor by wire transfer of immediately available funds to a bank account designated by the Company. Certificates
for the Firm Securities and the Optional Securities shall be registered in such names and denominations as the Representatives
shall have requested at least two full Business Days prior to the applicable Closing Date and shall be made available for checking
and packaging at a location in New York, New York as may be designated by the Representatives at least one full Business Day prior
to such Closing Date. Time shall be of the essence and delivery at the time and place specified in this Agreement is a further
condition to the obligations of each Underwriter.
| 5. | Covenants of the Company. The Company covenants
and agrees with each Underwriter as follows: |
(a) During
such period beginning on the Time of Sale and ending on the later of the Closing Date or such date, as in the opinion of counsel
for the Underwriters, that the Prospectus is no longer required by law to be delivered in connection with sales as contemplated
by this Agreement by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule
172 under the Securities Act (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration
Statement (including the Rule 462(b) Registration Statement), the Time of Sale Disclosure Package or the Prospectus, the Company
shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not
file any such proposed amendment or supplement to which the Representatives reasonably object.
(b) During
the Prospectus Delivery Period, the Company shall promptly advise the Representatives in writing (A) when the Registration Statement,
if not effective at the date and time this Agreement is executed and delivered to the parties, shall have become effective, (B)
of the receipt of any comments of, or requests for additional or supplemental information from, the Commission with respect to
the Registration Statement or the Offering, (C) of the time and date of any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (D) of the time and date that any post-effective
amendment to the Registration Statement becomes effective and (E) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment thereto 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 Class A Common Stock from any securities exchange upon which it is then listed
(or approved for listing) for trading or included or designated (or approved for inclusion or designation) for quotation, or of
the threatening or initiation of any proceedings for any of such purposes. The Company shall use its commercially reasonable efforts
to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such
stop order or order or notice of prevention or suspension at any time, the Company will use its commercially reasonable efforts
to obtain the lifting of such order at the earliest possible moment or will file a new registration statement and use its commercially
reasonable efforts to have such new registration statement declared effective as soon as practicable. Additionally, the Company
agrees that it shall comply with the provisions of Rules 424(b) and 434, as applicable, under the Securities Act, including with
respect to the timely filing of documents thereunder, and will use its commercially reasonable efforts to confirm that any filings
made by the Company under such Rule 424(b) were received in a timely manner by the Commission.
(c) (A) If
any event or development shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of
Sale Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made or
then prevailing, as the case may be, not misleading (in which case the Company agrees to notify the Representatives of any such
event or condition), or if in the reasonable opinion of the Representatives it is otherwise necessary to amend or supplement the
Time of Sale Disclosure Package to comply with law, the Company agrees to promptly prepare, file with the Commission and furnish
to the Underwriters, at its own expense, amendments or supplements to the Time of Sale Disclosure Package, and to furnish to the
Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request, so that the statements
in the Time of Sale Disclosure Package as so amended or supplemented will not be, in the light of the circumstances under which
they were made or then prevailing, as the case may be, misleading or so that the Time of Sale Disclosure Package, as amended or
supplemented, will comply with law; and (B) If, during the Prospectus Delivery Period, any event or development shall occur or
condition exist as a result of which it is necessary to amend or supplement the Registration Statement or the Prospectus in order
to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may
be, not misleading (in which case the Company agrees to notify the Representatives of any such event or condition), or if in the
reasonable opinion of the Representatives it is otherwise necessary to amend or supplement the Registration Statement or the Prospectus
to comply with applicable law, including in connection with the delivery of the Prospectus, the Company agrees to promptly prepare,
file with the Commission (and use its best efforts to have any amendment to the Registration Statement or any new registration
statement to be declared effective) and furnish to the Underwriters, amendments or supplements to the Registration Statement or
the Prospectus, or any new registration statement, and to furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request, so that the statements in the Registration Statement or the Prospectus as
so amended or supplemented will not be, in the light of the circumstances under which they were made or then prevailing, as the
case may be, misleading or so that the Registration Statement or the Prospectus, as amended or supplemented, will comply with applicable
law.
(d) The
Company agrees that, until the Option Closing Date, unless it obtains the prior written consent of the Representatives, it will
not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Company with
the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the
Representatives hereto shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Schedule
II attached hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company agrees that (A) it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus, and (B) has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect
of timely filing with the Commission where required, legending and record keeping.
(e) The
Company shall furnish to the Underwriters upon request, from time to time and without charge, copies of the Registration Statement
(of which a maximum of three shall be signed) and shall include exhibits and all amendments and supplements to any of such Registration
Statement, in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request.
(f) The
Company shall take or cause to be taken all necessary action and furnish to whomever the Representatives may direct such information
as may be required in qualifying the Securities for sale under the laws of such jurisdictions which the Representatives shall designate
and to continue such qualifications in effect for as long as may be necessary for the distribution of the Securities; except that
in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation, to execute a general consent
for service of process or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise
so subject.
(g) The
Company shall make generally available to its securityholders, in the manner contemplated by Rule 158(b) under the Securities
Act, as soon as practicable but in any event not later than 60 days after the end of its fiscal quarter in which the first anniversary
date of the effective date of the Registration Statement occurs, an earnings statement which will comply with Section 11(a)
of the Securities Act covering a period of at least 12 consecutive months beginning after the effective date of the Registration
Statement.
(h) Except
for (A) the issuance of the Securities to be sold hereunder, (B) the issuance of Class A Common Stock and Class A Common Stock-based
awards (including but not limited to options, restricted stock, restricted stock units and performance share units) to directors,
officers, employees and consultants under the Company’s 2014 Long-Term Incentive Plan, (C) the issuance of Class A Common
Stock upon the conversion or exercise of previously-granted awards under the Company’s 2014 Long-Term Incentive Plan or prior
employee benefit plans or the conversion of Class B common stock into Class A Common Stock, and (D) the issuance of Class A Common
Stock, in an amount not more than 10% of the number of shares of the issued and outstanding Class A Common Stock of the Company
immediately after the First Closing Date, pursuant to the equity distribution agreements, each dated May 24, 2013, with each of
RBC Capital Markets, LLC, JMP Securities LLC, Ladenburg Thalmann & Co. Inc. and MLV & Co. LLC, the Company will not, without
the prior written consent of Credit Suisse Securities (USA) LLC (which consent may be withheld in the sole discretion of Credit
Suisse Securities (USA) LLC), directly or indirectly, issue, sell, offer, agree to sell, contract or grant any option to sell (including,
without limitation, pursuant to any short sale), pledge, make any short sale of, maintain any short position with respect to, transfer,
establish or maintain an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act,
enter into any swap, derivative transaction or other arrangement (whether such transaction is to be settled by delivery of common
stock, other securities, cash or other consideration) that transfers to another, in whole or in part, any of the economic consequences
of ownership, file or cause to be filed a registration statement, including any amendments, with respect to the registration of,
or otherwise dispose of any shares of common stock, options or warrants to acquire shares of common stock, or securities exchangeable
or exercisable for or convertible into shares of common stock, or publicly announce an intention to do any of the foregoing, for
a period commencing on the date hereof and continuing through the end of the forty-fifth (45th) day after the date of
the Prospectus (the “Lock-Up Period”).
Notwithstanding the
foregoing, for the purpose of allowing the Underwriters to comply with FINRA’s NASD Rule 2711(f)(4), if (i) during the last
17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the
Company occurs or (ii) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period
will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or material
news, as applicable, unless Credit Suisse Securities (USA) LLC waives, in writing, such extension; provided, however,
that such extension of the Lock-Up Period shall not apply if, (i) within three (3) business days preceding the expiration of the
Lock-Up Period, the Company delivers to Credit Suisse Securities (USA) LLC a certificate signed by the Chief Financial Officer
or Chief Executive Officer of the Company certifying that the Class A Common Stock of the Company are “actively traded securities”
(as defined in Rule 101(c)(1) of Regulation M under the Exchange Act) and (ii) the Company meets the applicable requirements of
paragraph (a)(1) of Rule 139 under the Securities Act in the manner contemplated by FINRA’s NASD Rule 2711(f)(4).
(i)
The Company shall maintain, at its expense, a registrar and transfer agent for the Class A Common Stock.
(j) The
Company shall apply the net proceeds of the sale of the Securities substantially in the manner specified in the Prospectus under
the caption “Use of Proceeds”.
(k) The
Company will furnish to its securityholders annual reports containing financial statements audited by independent public accountants
and quarterly reports containing financial statements and financial information which may be unaudited.
(l) The
Company will use its commercially reasonable efforts to maintain the listing of its Class A Common Stock on the NYSE.
(m) The
Company 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 Securities, provided that the Company may bid for and purchase its common stock in accordance with Regulation M and Rule
10b-18 under the Exchange Act.
(n) During
the period of five (5) years hereafter, the Company will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such
year; and the Company will furnish to the Representatives (A) 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 shareholders, and (B) from time to time,
such other information concerning the Company as the Representatives 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 EDGAR, it is not required to furnish such reports or statements to the Underwriters.
(o) The
Company shall pay or cause to be paid (A) all expenses (including stock transfer taxes) incurred in connection with the delivery
to the several Underwriters of the Securities, (B) all fees and expenses (including, without limitation, fees and expenses
of the Company’s accountants and counsel) in connection with the preparation, printing, filing, delivery and shipping of
the Registration Statement (including the financial statements therein and all amendments and exhibits thereto), each Preliminary
Prospectus, the Time of Sale Disclosure Package and the Prospectus as amended or supplemented, (C) the filing fee of FINRA
and the applicable fees and expenses of counsel for the Underwriters in connection with such submissions and the review of the
Offering by FINRA, (D) any applicable listing fees, (E) to the extent necessary, the cost of printing certificates representing
the Securities, (F) the cost and charges of any transfer agent or registrar and (G) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise provided for in this Section 5. The Company, on the one
hand, and the Underwriters, on the other hand, shall be responsible for their own expenses in connection with any road shows and
other presentations undertaken in connection with the Offering (including all travel, hotel and food expenses for its respective
personnel). The Company shall not in any event be liable to any of the Underwriters for loss of anticipated profits from the transactions
covered by this Agreement. The Representatives may deduct, after providing the Company with an itemized list and supporting documentation
of expenses actually incurred, from the net proceeds of the Offering payable to the Company on the Closing Date the expenses set
forth above (which shall be mutually agreed upon between the Company and the Representatives prior to the Closing Date) to be paid
by the Company to the Underwriters and others. If the Offering is not consummated for any reason whatsoever, other than a breach
of this Agreement by the Underwriters, a default pursuant to Section 8 hereof or a termination of this Agreement pursuant to Section
9(b)(C), (E), (F), (G) or (H), then the Company shall reimburse the Underwriters in full for their respective out-of-pocket accountable
expenses actually incurred through such date, including, without limitation, fees of counsel to the Underwriters (up to a maximum
of $50,000), less any amounts previously paid.
6. Conditions
of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to the accuracy,
at and as of the date hereof and the First Closing Date (as if made at the First Closing Date) and, with respect to the Optional
Securities, the Option Closing Date (as if made at the Option Closing Date), of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The
Registration Statement shall be effective and remain effective on the date of this Agreement, or such later time and date as the
Representatives shall approve, and all filings required by Rules 424, 430A, 430B, 430C and 433 under the Securities Act shall have
been timely made; no stop order suspending the effectiveness of the Registration Statement or any amendment thereof shall have
been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission
for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus,
any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Representatives’ satisfaction.
(b) On
each Closing Date, the Representatives shall have received the favorable opinions of Hunton & Williams LLP, counsel for the
Company, dated as of such Closing Date, in form and substance satisfactory to counsel for the Underwriters, to the effect set forth
in Exhibits A-1 and A-2 attached hereto.
(c) On
each Closing Date, the Representatives shall have received the favorable opinion of Gibson, Dunn & Crutcher LLP, counsel for
the Underwriters, dated as of such Closing Date, in form and substance satisfactory to the Representatives.
(d) On
each Closing Date, the Representatives shall have received the favorable opinion of Kaufman & Canoles, P.C., counsel for the
Underwriters with respect to certain matters of Virginia law, dated as of such Closing Date, in form and substance satisfactory
to the Representatives.
(e) There
shall have been furnished to the Representatives a certificate of the Company, dated as of each Closing Date and addressed to the
Representatives, signed by the Chief Executive Officer and by the Chief Financial Officer of the Company to the effect that:
(A) The
representations and warranties of the Company in this Agreement, are true and correct, as if made at and as of such Closing Date
(except to the extent that such representations and warranties speak as of another date, in which case such representations and
warranties shall be true and correct as of such other date);
(B) The
Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied, in each
case with respect to the Offering, at or prior to such Closing Date;
(C) No
stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have
been initiated or are pending or, to their knowledge, contemplated by the Commission; and
(D) Any
and all filings required of the Company by Rules 424, 430A, 430B and 430C under the Securities Act have been timely made.
(f) On
the date hereof, and on each Closing Date, the Representatives shall have received from PwC, a letter dated the date hereof, and
dated each Closing Date, as the case may be, addressed to the Representatives, on behalf of the several Underwriters, in form and
substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountant’s
“comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor
bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus.
(g) The
“lock-up” agreements between the Representatives and the officers and directors of the Company listed on Schedule
IV attached hereto, in substance and form as set forth in Exhibit B attached hereto, shall have been delivered to the
Representatives on or about the date hereof and shall be in full force and effect on each Closing Date.
(h) Since
the date of the Prospectus, there has not been a Material Adverse Effect.
(i) On
or before each Closing Date, the Representatives and counsel for the Underwriters shall have received such information, certificates,
agreements, opinions and other documents as they may reasonably require.
(j) On
the First Closing Date, the Class A Common Stock shall be approved for listing on the NYSE.
All such opinions,
certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory in form and
substance to the Representatives and to counsel for the Underwriters. The Company shall furnish the Representatives with such conformed
copies of such opinions, certificates, letters and other documents as the Representatives shall reasonably request. If any of the
conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, this Agreement
and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the First Closing Date or the Option
Closing Date, as the case may be, by the Representatives. Any such cancellation shall be without liability of the Underwriters
to the Company. Notice of such cancellation shall be given to the Company in writing, or by telegraph or telephone and confirmed
in writing.
| 7. | Indemnification and Contribution. |
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter and any person who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the respective directors, officers, employees and agents
of each Underwriter from and against any loss, expense, liability, damage or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter, controlling person, director, officer, employee or agent may incur under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out of or is based
upon (A) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment
thereof), the Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, (B) any omission or alleged omission
to state a material fact required to be stated in any such Registration Statement, or necessary to make the statements made therein
not misleading, (C) any omission or alleged omission from the Preliminary Prospectus, any Issuer Free Writing Prospectus or Prospectus
of a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such loss, expense,
liability, damage or claim arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged
omission of a material fact made in reliance upon and in conformity with information furnished in writing by or on behalf of any
Underwriter through the Representatives to the Company expressly for use in such Registration Statement, Preliminary Prospectus,
Issuer Free Writing Prospectus or Prospectus; and the Company agrees to reimburse any Underwriter or any such director, officer,
employee, agent or controlling person for any legal and other expense reasonably incurred by the Underwriter or any such director,
officer, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any
such loss, expense, liability, damage or claim. The indemnity agreement set forth in this Section 7(a) shall be in addition
to any liability which the Company may otherwise have.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify, defend and hold harmless the Company, its affiliates and employees,
and their respective directors, officers that signed the Registration Statement, and any other person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which the Company or any such person may incur under the Securities
Act, the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out of or is based upon (A)
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereof),
the Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, (B) any omission or alleged omission to state
a material fact required to be stated in any such Registration Statement, or necessary to make the statements made therein not
misleading, or (C) any omission or alleged omission from the Preliminary Prospectus, any such Issuer Free Writing Prospectus or
the Prospectus of a material fact necessary to make the statements made therein, in the light of the circumstances under which
they were made, not misleading, but in each case only insofar as such untrue statement or alleged untrue statement or omission
or alleged omission was made in such Registration Statement, Preliminary Prospectus, Issuer Free Writing Prospectus or Prospectus
in reliance upon and in conformity with information furnished in writing by or on behalf of any Underwriters through the Representatives
to the Company expressly for use therein; and to reimburse the Company and any such person for any legal and other expense reasonably
incurred by the Company or any such person in connection with investigating, defending, settling, compromising or paying any such
loss, expense, liability, damage or claim. The indemnity agreement set forth in this Section 7(b) shall be in addition to any liabilities
that each Underwriter may otherwise have.
(c) 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 7(a) above, counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 7(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 7 (whether or not
the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (A) includes an
unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or
claim and (B) 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) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under subsections
(a) and (b) of this Section 7 in respect of any losses, expenses, liabilities, damages or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, expenses, liabilities, damages or claims (A) in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering
of the Securities pursuant to this Agreement or (B) if (but only if) the allocation provided by clause (A) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (A) above
but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, expenses, liabilities, damages or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other
hand, shall be deemed to be in the same respective proportion as the total proceeds from the Offering (net of underwriting discounts
and commissions but before deducting expenses) received by the Company, on the one hand, bear to the underwriting discounts and
commissions received by the Underwriters, on the other hand. The relative fault of the Company, on the one hand, and of the
Underwriters, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company, on the one
hand, or by the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, expenses,
liabilities, damages or claims referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any claim or action.
(e) The
Company, on the one hand, and the Underwriters, on the other hand, agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in subsection
(d)(A) and, if applicable (B), above. Notwithstanding the provisions of this Section 7, no Underwriter shall be required
to contribute any amount in excess of the underwriting discounts and commissions applicable to the Securities purchased by such
Underwriter. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this Section 7 are several in proportion to their respective underwriting commitments and
not joint. For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and the underwriters’ directors, officers, employees, and agents
shall have the same rights to contribution as the Underwriters, and each director of the Company, each officer of the Company,
and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Company.
8. Substitution
of Underwriters. If any Underwriter defaults in its obligation to purchase the number of Securities which it has agreed to
purchase under this Agreement, the non-defaulting Underwriters shall be obligated to purchase (in the respective proportions which
the number of Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears
to the total number of Securities set forth opposite the names of all the non-defaulting Underwriters in Schedule I
hereto) the Securities which the defaulting Underwriter agreed but failed to purchase (the “Default Securities”);
except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds 10% of the total number of Firm Securities,
and any non-defaulting Underwriter shall not be obligated to purchase more than 110% of the number of Securities set forth opposite
its name in Schedule I attached hereto purchasable by it pursuant to the terms of Section 3 hereof. If the foregoing
maximums are exceeded, the non-defaulting Underwriters, and any other underwriters satisfactory to the Representatives who so agree,
shall have the right, but shall not have the obligation, to purchase (in such proportions as may be agreed upon among them) all
the Default Securities on the terms contained herein. If the non-defaulting Underwriters or the other underwriters satisfactory
to the Representatives do not elect to purchase the Default Securities, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company except for the payment of expenses to be borne by the Company and the Underwriters
as provided in Section 5(o) hereof and the indemnity and contribution agreements of the Company and the Underwriters contained
in Section 7 hereof.
Nothing contained herein
shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters
satisfactory to the Representatives are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representatives
or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be
necessary in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or in any other document or agreement,
and to file promptly any amendments or any supplements to the Registration Statement or the Time of Sale Disclosure Package or
the Prospectus which in the Representatives’ opinion may thereby be made necessary. The term “Underwriter” as
used in this Agreement shall include any party substituted under this Section 8 with like effect as if it had originally been a
party to this Agreement with respect to the Securities.
| 9. | Effective Time and Termination. |
(a) This
Agreement shall become effective at the date and time this Agreement is executed and delivered to the parties hereto. Until this
Agreement is effective, it may be terminated by the Company or by the Representatives by giving notice as hereinafter provided
to the Representatives, or by the Representatives by giving notice as hereinafter provided to the Company, except that the provisions
of Sections 5(o) and 7 hereof shall at all times be effective. For the purpose of this Section 9, the Securities shall
be deemed to have been released for sale to the public upon release by the Representatives of an electronic communication authorizing
commencement of the offering of the Securities for sale by the Underwriters or other securities dealers.
(b) Until
the First Closing Date, this Agreement may be terminated by the Representatives by giving notice as hereinafter provided to the
Company, if (A) the Company shall have failed, refused or been unable, at or prior to the First Closing Date, to perform any
agreement on its part to be performed hereunder unless the failure to perform any agreement is due to the default or omission by
any Underwriter; (B) any other condition of the obligations of the Underwriters hereunder is not fulfilled; (C) trading in securities
generally on the NYSE or Nasdaq shall have been suspended or minimum or maximum prices shall have been established on either of
such exchanges or such market by the Commission or by such exchange or other regulatory body or governmental authority having jurisdiction;
(D) trading or quotation in any of the Company’s securities shall have been suspended or materially limited by the Commission
or by the NYSE or Nasdaq or other regulatory body of governmental authority having jurisdiction; (E) a general banking moratorium
shall have been declared by federal or New York authorities; (F) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred; (G) there shall have been any material adverse change in general
economic, political or financial conditions or if the effect of international conditions on the financial markets in the United
States which, in the Representatives’ judgment, makes it inadvisable to proceed with the delivery of the Securities; or (H) any
attack on, outbreak or escalation of hostilities, declaration of war or act of terrorism involving the United States or any other
national or international calamity or emergency shall have occurred if, in the Representatives’ judgment, the effect of any
such attack, outbreak, escalation, declaration, act, calamity or emergency makes it impractical or inadvisable to proceed with
the completion of the public offering or the delivery of the Securities. Any termination of this Agreement pursuant to this Section 9
shall be without liability on the part of the Company or any Underwriter, except as otherwise provided in Sections 5 and 7 hereof.
Any notice referred
to above may be given at the address specified in Section 12 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, shall be immediately confirmed in writing.
10. Survival
of Indemnities, Contribution, Warranties and Representations. All representations, warranties and agreements of the Company
and the Underwriters herein or in certificates delivered pursuant hereto, and the agreements of the several Underwriters and the
Company contained in Section 7 hereof, shall remain operative and in full force and effect regardless of any investigation made
by or on behalf of any Underwriter or any affiliate or selling agent thereof, or any person controlling an Underwriter, any officers
or directors of an Underwriter or any of the Company’s officers, directors or controlling persons, and shall survive delivery
of, and payment for, the Securities.
11. Research
Analyst Independence. The Company acknowledges that the Underwriters’ research analysts and research departments are
required to be independent from their respective investment banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the Offering that differ from the views of their respective
investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views
expressed by their independent research analysts and research departments may be different from or inconsistent with the views
or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each
of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its customers and hold long or short positions in the Company’s
equity securities.
12. Notices.
All communications hereunder shall be in writing and shall be deemed to have been duly given if mailed, hand delivered or transmitted
by any standard form of telecommunication to the parties hereto as follows:
If to the Representatives: |
|
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
Attention: Prospectus Department
Email: newyork.prospectus@credit-suisse.com |
|
|
|
in the case of any notice
pursuant to Section 7 hereof, |
|
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with a copy to: |
|
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Syndicate Registration
Facsimile: (646) 834-8133
with a copy to:
Director of Litigation |
|
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Office of the General Counsel |
|
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Barclays Capital Inc. |
|
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745 Seventh Avenue, |
|
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New York, New York 10019 |
and: |
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Morgan Stanley & Co. LLC |
|
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1585 Broadway |
|
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New York, New York 10036 |
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Facsimile: (212) 761-0316 |
|
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Attn: Equity Capital Markets |
|
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Syndicate Desk |
|
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and: |
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RBC Capital Markets, LLC |
|
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Three World Financial Center |
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200 Vesey Street, 8th Floor |
|
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New York, New York 10281 |
|
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Attention: Equity Capital Markets |
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Facsimile: (212) 428-6260 |
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|
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and: |
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Keefe, Bruyette & Woods, Inc. |
|
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787 7th Avenue, 4th Floor |
|
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New York, New York 10019 |
|
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Facsimile: (212) 682-1766 |
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Attention: Equity Capital Markets |
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with a copy to: |
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Gibson, Dunn & Crutcher LLP |
|
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1050 Connecticut Avenue, N.W. |
|
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Washington, D.C. 20036 |
|
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Attention: Howard B. Adler, Esq. |
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Facsimile: (202) 467-0539 |
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If to the Company: |
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Arlington Asset Investment Corp. |
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1001 Nineteenth Street North |
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Arlington, VA 22209 |
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Attention: J. Rock Tonkel, Jr. |
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Facsimile: (703) 373-0680 |
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with a copy to: |
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Hunton & Williams LLP |
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Riverfront Plaza, East Tower |
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951 East Byrd Street |
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Richmond, VA 23219 |
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Attention: S. Gregory Cope, Esq. |
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Facsimile: (804) 343-4833 |
The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on behalf of the Underwriters by the Representatives.
13. Information
Furnished by Underwriters. The statements set forth under the caption “Underwriting” in the table concerning
the name of each Underwriter and the number of shares each Underwriter has agreed to purchase and in the paragraphs concerning
sales by Underwriters to the public at the offering price and to dealers at such price less a concession in any Preliminary Prospectus
and the Prospectus, and in the first two paragraphs under the caption “Underwriting — Stabilization, Short
Positions and Penalty Bids” constitute the only written information furnished by or on behalf of any Underwriter referred
to in paragraphs (c), (d), (e) and (f) of Section 1 hereof and in paragraphs (a) and (b) of Section 7 hereof.
14. Parties.
This Agreement is made solely for the benefit of the several Underwriters, the Company, any officer, director, employee, agent
or controlling person referred to in Section 7 hereof, and their respective successors and assigns or heirs and legal representatives,
as applicable, and no other person shall acquire or have any right by virtue of this Agreement. The term “successors and
assigns,” as used in this Agreement, shall not include any purchaser of any of the Securities from any of the Underwriters
merely by reason of such purchase.
15. Definition
of “Business Day”. For purposes of this Agreement, “Business Day” means any day on which the NYSE is
open for trading.
16. Governing
Law. This Agreement shall be governed by and construed in accordance with the internal law of the State of New York, without
giving effect to the choice of law or conflict of laws principles thereof (other than Sections 5-1401 and 5-1402 of the New York
General Obligations Law).
17. Partial
Unenforceability. 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 permitted to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
18. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a)
the Underwriters have been retained solely to act as underwriters in connection with the sale of the Securities and that no fiduciary,
advisory or agency relationship between the Company, on the one hand, and the Underwriters, on the other hand, has been created
in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Underwriters have advised or
are advising the Company on other matters;
(b) the
price of the Securities set forth in this Agreement was established by the Company following discussions and arms’-length
negotiations with the Underwriters, and the Company is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated by this Agreement;
(c)
the Company has 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, and that the Underwriters have no obligation to disclose such interests
and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(d) the
Company waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary
duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct or indirect)
to the Company 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 shareholders, employees or creditors of the Company.
19. General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written
or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit. The section headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
20. Waiver
of Jury Trial. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its shareholders and
affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
[Signature page follows.]
Please confirm, by signing and returning
to us six (6) counterparts of this Agreement, that the Representatives are acting on behalf of themselves and the several Underwriters
and that the foregoing correctly sets forth the agreement among the Company and the several Underwriters.
|
Very truly yours, |
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ARLINGTON ASSET INVESTMENT CORP. |
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By: |
/s/ Kurt R. Harrington |
|
Name: Kurt R. Harrington |
|
Title: Chief Financial Officer |
Confirmed and accepted as of the date first
above mentioned:
Credit Suisse Securities (USA) LLC |
|
|
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By: |
/s/ Stephanie M. Ruiz |
|
Name: Stephanie M. Ruiz |
|
Title: Managing Director |
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BARCLAYS CAPITAL INC. |
|
|
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By: |
/s/ Victoria Hale |
|
Name: Victoria Hale |
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Title: Vice President |
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Morgan Stanley &
Co. LLC |
|
|
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By: |
/s/ Taylor Wright |
|
Name: Taylor Wright |
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Title: Managing Director |
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RBC Capital Markets, LLC |
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By: |
/s/ Dominic Capolongo |
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Name: Dominic Capolongo |
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Title: Managing Director |
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Keefe, Bruyette &
Woods, Inc. |
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By: |
/s/ Jennifer Fuller |
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Name: Jennifer Fuller |
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Title: Director |
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As Representatives of the Several
Underwriters named in Schedule I hereto
Signature Page to Underwriting Agreement
SCHEDULE I
Underwriting Agreement dated September 4,
2014
Underwriters | |
Number of Firm Securities to be Purchased | |
| |
| |
Credit Suisse Securities (USA) LLC | |
| 550,002 | |
Barclays Capital Inc. | |
| 550,000 | |
Morgan Stanley & Co. LLC | |
| 550,000 | |
RBC Capital Markets, LLC | |
| 550,000 | |
Keefe, Bruyette & Woods, Inc. | |
| 275,000 | |
JMP Securities LLC | |
| 82,500 | |
FBR Capital Markets & Co. | |
| 82,500 | |
Ladenburg Thalmann & Co. Inc. | |
| 36,666 | |
MLV & Co. LLC | |
| 36,666 | |
Compass Point Research & Trading, LLC | |
| 36,666 | |
Total | |
| 2,750,000 | |
SCHEDULE II
Issuer General-Use Free Writing Prospectus
None.
SCHEDULE III
Pricing and Other Information
2,750,000 shares at $27.61 per share, with an option to purchase
412,500 additional shares at $27.61 per share, less an amount per share equal to any dividends or distributions declared by the
Company and payable on each share of the Firm Securities but not payable on any of the Optional Securities.
SCHEDULE IV
Lock-Up Agreements
Eric F. Billings
J. Rock Tonkel, Jr.
Kurt R. Harrington
Daniel J. Altobello
Daniel E. Berce
Peter A. Gallagher
Ralph S. Michael, III
David W. Faeder
Exhibit 5.1
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Hunton & Williams LLP |
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RIVERFRONT Plaza, |
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EAST TOWER |
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951 EAST BYRD STREET |
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RICHMOND, VIRGINIA 23219-4074 |
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Tel 804 • 788 • 8200 |
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Fax 804 • 788 • 4190 |
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September 9, 2014 |
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Board of Directors
Arlington Asset Investment Corp.
1001 Nineteenth Street North
Arlington, Virginia 22209
Issuance
of up to 3,162,500 Shares of Class A Common Stock
Gentlemen:
We have served as special counsel to Arlington
Asset Investment Corp., a Virginia corporation (the “Company”), in connection with the issuance and sale by
the Company, in an underwritten public offering, of up to an aggregate of 3,162,000 shares (the “Shares”) of
Class A common stock, par value $0.01 per share, of the Company (“Class A Common Stock”), (including up to 412,500
shares subject to the Underwriters’ 30-day option to purchase additional shares of Class A Common Stock), pursuant to an
underwriting agreement, dated September 4, 2014 (the “Underwriting Agreement”), by and among the Company and
the several underwriters named in Schedule I to the Underwriting Agreement (the “Underwriters”), for whom Credit
Suisse Securities (USA) LLC, Barclays Capital Inc., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC and Keefe, Bruyette
& Woods, Inc. are acting as representatives. The Shares have been registered on a Registration Statement on Form S-3 (File
No. 333-193478), filed by the Company with the United States Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), on January 22, 2014, and declared effective
by the Commission on February 5, 2014 (the “Registration Statement”).
In connection with our representation of
the Company, and as a basis for the opinions hereinafter set forth, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of the following documents:
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1. |
the Amended and Restated Articles of Incorporation of the Company, as amended, as certified by the Commonwealth of Virginia State Corporation Commission (the “SCC”) on September 9, 2014 and by the Secretary of the Company on the date hereof; |
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2. |
the Amended and Restated Bylaws of the Company, as amended through the date hereof, as certified by the Secretary of the Company on the date hereof; |
ATLANTA AUSTIN
BANGKOK BEIJING BRUSSELS CHARLOTTE DALLAS HOUSTON LONDON LOS ANGELES
McLEAN MIAMI
NEW YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO TOKYO WASHINGTON
www.hunton.com
Board of Directors
Arlington Asset Investment Corp.
September 9, 2014
Page 2
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3. |
resolutions of the Board of Directors of the Company adopted at meetings or by unanimous written consent held on January 15, 2014 and June 11, 2014, with respect to, among other things, the issuance, sale and due authorization of the Shares and the formation of a pricing committee of the Board of Directors of the Company (the “Pricing Committee”) in connection therewith (the “Board Resolutions”), and resolutions of the Pricing Committee, adopted at a meeting held on September 4, 2014 with respect to the pricing of the issuance of the Shares (the “Pricing Committee Resolutions,” and together with the Board Resolutions, the “Resolutions”), each as certified by the Secretary of the Company as of the date hereof; |
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4. |
a certificate, issued by the SCC on September 9, 2014, as to the Company’s existence and good standing in the Commonwealth of Virginia (the “Good Standing Document”); |
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5. |
an executed copy of the certificate of the Secretary of the Company, dated the date hereof, as to certain factual matters (the “Secretary’s Certificate”); |
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6. |
the Registration Statement; |
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7. |
the preliminary prospectus supplement, dated September 3, 2014, in the form filed with the Commission on September 4, 2014, pursuant to Rule 424(b) promulgated under the Securities Act, together with the base prospectus dated February 5, 2014 (collectively, the “Preliminary Prospectus,” and together with the pricing information set forth on Schedule III to the Underwriting Agreement, the “Time of Sale Disclosure Package”); |
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8. |
the final prospectus supplement, dated September 4, 2014, as filed with the Commission on September 8, 2014 pursuant to Rule 424(b) promulgated under the Securities Act, together with the base prospectus dated February 5, 2014 (collectively, the “Prospectus”); and |
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9. |
an executed copy of the Underwriting Agreement. |
For purposes of the opinions expressed below,
we have assumed (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all
documents submitted as certified or photostatic copies and the authenticity of the originals thereof, (iii) the genuineness of
all signatures and (iv) the due authorization, execution and delivery of all documents by all parties and the validity, binding
effect and enforceability thereof upon all parties.
Board of Directors
Arlington Asset Investment Corp.
September 9, 2014
Page 3
Based upon the foregoing, and having regard
for such legal considerations as we have considered necessary for purposes hereof, we are of the opinion that:
1. The Company is a corporation duly
incorporated and existing under the laws of the Commonwealth of Virginia and is in good standing in the Commonwealth of Virginia.
The Company has the corporate power and authority to issue the Shares.
2. The issuance of the Shares has been
duly authorized and, when issued and delivered upon payment therefor in accordance with the Registration Statement, the Resolutions
and the Underwriting Agreement, the Shares will be validly issued, fully paid and nonassessable.
The opinion with respect to the incorporation,
existence and good standing of the Company in the Commonwealth of Virginia is based solely on the Good Standing Document.
The foregoing opinions are limited to the
laws of the Commonwealth of Virginia, and we do not express any opinion herein concerning any other law. We express no opinion
as to the applicability or effect of any federal or state securities (or “blue sky”) laws, including the securities
laws of the Commonwealth of Virginia or any federal or state laws regarding fraudulent transfers. To the extent that any matter
as to which our opinion is expressed herein would be governed by any provisions other than those set forth in the laws of the Commonwealth
of Virginia, we do not express any opinion on such matter.
This opinion is being furnished to you for
submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K, which is incorporated by reference
in the Registration Statement in accordance with the requirements of Form S-3 and the rules and regulations promulgated under the
Securities Act. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement with the Commission
on the date hereof and to the use of the name of our firm in the section entitled “Legal Matters” in the Prospectus.
In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the
Securities Act or the rules and regulations promulgated thereunder by the Commission.
This opinion is limited to the matters stated
in this letter, and no opinion may be implied or inferred beyond the matters expressly stated in this letter. This opinion is given
as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our
attention or changes in the law, including judicial or administrative interpretations thereof, that occur which could affect the
opinions contained herein.
Board of Directors
Arlington Asset Investment Corp.
September 9, 2014
Page 4
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Very truly yours, |
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/s/ Hunton & Williams LLP |
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