Exhibit 1.1
KeyCorp Capital IX
Capital Securities
guaranteed to the extent set
forth in the Guarantees by
KEYCORP
Underwriting
Agreement
November 16, 2006
To the Representatives of the
several Underwriters
named in Schedule I to
the respective
Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time KeyCorp Capital
IX, a statutory trust formed under the laws of the State of
Delaware (the “Designated Trust”), and KeyCorp, an Ohio
corporation (the “Company”), as depositor of the
Designated Trust and as guarantor, propose to enter into one or
more Pricing Agreements (each a “Pricing Agreement”) in
the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, that the Designated Trust
issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement
and the securities specified therein) certain of its preferred
securities (the “Securities”) representing undivided
beneficial interests in the assets of the Designated Trust. The
Securities specified in such Pricing Agreement are referred to as
the “Firm Designated Securities” with respect to such
Pricing Agreement. If specified in such Pricing Agreement, the
Designated Trust may grant the Underwriters the right to purchase
at their election an additional number of Securities, specified as
provided in such Pricing Agreement as provided in Section 3
hereof (the “Optional Designated Securities”). The Firm
Designated Securities and any Optional Designated Securities are
collectively called the “Designated Securities.” The
proceeds of the sale of the Designated Securities to the public and
of common securities of the Designated Trust (the “Common
Securities”) to the Company concurrently with the sale of the
Designated Securities are to be invested in junior subordinated
debentures of the Company (the “Junior Subordinated
Debentures”) identified in the Pricing Agreement with respect
to such Designated Securities (with respect to such Pricing
Agreement, the “Designated Junior Subordinated
Debentures”), to be issued pursuant to the Junior
Subordinated Indenture, dated as of December 4, 1996, between
the Company and Bankers Trust Company (now known as Deutsche Bank
Trust Company Americas), as trustee (the “Indenture
Trustee”), as supplemented from time to time (as so
supplemented, the “Indenture”). The Designated
Securities may be exchangeable into Designated Junior Subordinated
Debentures, as specified in Schedule II to such Pricing Agreement.
The Designated Securities will be guaranteed by the Company to the
extent set forth in the Pricing Agreement with respect to such
Designated Securities (the “Designated Guarantee”) (all
such Designated Guarantees together, the
“Guarantees”).
The terms and rights of any
particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and in or pursuant to the
amended and restated trust agreement identified in such Pricing
Agreement (with respect to such Pricing Agreement, the “Trust
Agreement”).
1. Particular sales of Designated
Securities may be made from time to time to the Underwriters of
such Designated Securities, for whom the firms designated as
representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as
representatives (the “Representatives”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of
the Designated Trust to sell any of the Securities or as an
obligation of any of the Underwriters to purchase any of the
Securities. The obligation of the Designated Trust to issue and
sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced
by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the
aggregate number of the Firm Designated Securities, the maximum
number of Optional Designated Securities, if any, the initial
public offering price of such Firm Designated Securities and
Optional Designated Securities or the manner of determining such
price, the terms of the Designated Securities, including the terms
on which and terms of the securities into which the Designated
Securities will be exchangeable, the purchase price to the
Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters, the number of such Designated
Securities to be purchased by each Underwriter and the commission,
if any, payable to the Underwriters with respect thereto and shall
set forth the date, time and manner of delivery of such Firm and
Optional Designated Securities, if any, and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth
in the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall
be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The
standard provisions set forth herein will be incorporated by
reference in any Pricing Agreement. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall
be several and not joint.
2. The Designated Trust and the
Company, jointly and severally, each represents and warrants to,
and agrees with, each of the Underwriters that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form
S-3 (File No. 333-134937) in respect of the Securities has
been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the
date hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission, and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company or the
Designated Trust (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Securities filed
with the Commission pursuant to Rule 424(b) under the Act is
hereinafter called a “Preliminary Prospectus”; the
various parts of such registration statement, including all
exhibits thereto but excluding Form T-1 and including
any
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prospectus supplement relating to
the Securities that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement, each
as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
“Registration Statement”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 2(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus
relating to the Securities filed with Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(A)(a) hereof
is hereinafter called the “Prospectus”; any reference
herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date
of such prospectus; any reference to any amendment or supplement to
the Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated therein, in each case after the date
of the Basic Prospectus, such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Designated Trust, if any, and the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in Rule 433
under the Act relating to the Securities, the Junior Subordinated
Debentures or the Guarantees is hereinafter called an “Issuer
Free Writing Prospectus”);
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”), and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided , however , that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Designated Trust and the Company by an Underwriter
of Designated Securities through the Representatives expressly for
use therein;
(c) For the purposes of this
Agreement, the “Applicable Time” is the time set forth
in Schedule II to the applicable Pricing Agreement; the Pricing
Prospectus as supplemented by the final term sheet prepared and
filed pursuant to Section 5(A)(a) hereof, taken together
(collectively, the “Pricing Disclosure Package”) as of
the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free
Writing Prospectus listed on Schedule III to the applicable Pricing
Agreement does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus
and each such Issuer Free Writing Prospectus, as supplemented by
and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that this representation and warranty
shall
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not apply to statements or omissions
made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Designated
Trust or the Company by an Underwriter of Designated Securities
through the Representatives expressly for use therein;
(d) The documents incorporated by
reference in the Pricing Prospectus and the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Designated
Trust or the Company by an Underwriter of Designated Securities
through the Representatives expressly for use therein; and no such
documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of the applicable Pricing Agreement
and prior to the execution of the applicable Pricing
Agreement;
(e) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act
and the Trust Indenture Act, and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided , however , that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Designated Trust or the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use therein;
(f) The Designated Trust has been
duly created and is validly existing as a statutory trust in good
standing under the laws of the State of Delaware, with power and
authority to own, lease and operate its properties and conduct its
business as described in the Pricing Prospectus; the Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Ohio, with power and
authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the Pricing
Prospectus;
(g) The Designated Securities have
been duly and validly authorized, and, when the Firm Designated
Securities are issued and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Securities
and, in the case of any Optional Designated Securities, pursuant to
Over-allotment Options (as defined in Section 3 hereof) with
respect to such Securities, such Designated Securities will be duly
and validly issued and fully paid and non-assessable beneficial
interests in the Designated Trust entitled to the
benefits
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provided by the applicable Trust
Agreement, which will be substantially in the form filed as an
exhibit to the Registration Statement; the Designated Securities
conform to the description thereof contained in the Registration
Statement and the Designated Securities will conform to the
description thereof contained in the Pricing Disclosure Package and
the Prospectus;
(h) The Common Securities of the
Designated Trust have been duly authorized on behalf of the
Designated Trust by the Company, as depositor of the Designated
Trust, and upon delivery by the Designated Trust to the Company
against payment therefor as set forth in the Trust Agreement, will
be duly and validly issued and non-assessable beneficial interests
in the Designated Trust and will conform to the description thereof
contained in the Pricing Disclosure Package and the Prospectus; the
issuance of the Common Securities of the Designated Trust is not
subject to preemptive or other similar rights; the Common
Securities conform to the description thereof contained in the
Registration Statement; and at each Time of Delivery all of the
issued and outstanding Common Securities of the Designated Trust
will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(i) The Designated Guarantee, the
Trust Agreement for the Designated Trust, the Designated Junior
Subordinated Debentures and the Indenture (the Designated
Guarantee, such Trust Agreement, the Designated Junior Subordinated
Debentures and the Indenture being collectively referred to as the
“Company Agreements”) have each been duly authorized
and when validly executed and delivered by the Company and, in the
case of the Designated Guarantee, by the Guarantee Trustee (as
defined in the Guarantee), in the case of the Trust Agreement, by
the Trustees (as defined in the Trust Agreement) and, in the case
of the Indenture, by the Indenture Trustee, and, in the case of the
Designated Junior Subordinated Debentures, when validly issued by
the Company and duly authenticated and delivered by the Indenture
Trustee, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles; the Trust Agreement, the Indenture and the Designated
Guarantee have each been duly qualified under the Trust Indenture
Act; the Designated Junior Subordinated Debentures are entitled to
the benefits of the Indenture; and the Company Agreements, which
will be in substantially the form filed as an exhibit to the
Registration Statement, will conform to the descriptions thereof in
the Pricing Disclosure Package and the Prospectus;
(j) The issue and sale of the
Designated Securities by the Designated Trust, the compliance by
the Designated Trust with all of the provisions of this Agreement,
any Pricing Agreement and each Over-allotment Option, if any, the
Designated Securities and the Trust Agreement, the purchase of the
Designated Junior Subordinated Debentures by the Designated Trust,
the execution, delivery and performance by the Designated Trust of
the Trust Agreement, this Agreement and any Pricing Agreement, and
the consummation of the transactions contemplated herein and
therein will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Designated Trust is a
party or by which the Designated Trust is bound or to which any of
the property or assets of the Designated Trust is subject, nor will
such action result in any violation of the provisions of the Trust
Agreement or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Designated Trust or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or
5
governmental agency or body is
required for the issue and sale of the Designated Securities and
the Common Securities by the Designated Trust, the purchase of the
Junior Subordinated Debentures by the Designated Trust or the
consummation by the Designated Trust of the transactions
contemplated by this Agreement, the Pricing Agreement or any
Over-allotment Option or the Trust Agreement, except such as have
been, or will have been, prior to each Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Securities by
the Underwriters;
(k) The issuance by the Company of
the Guarantees and the Junior Subordinated Debentures, the
compliance by the Company with all of the provisions of this
Agreement, any Pricing Agreement and each Over-allotment Option, if
any, the Guarantees, the Junior Subordinated Debentures, the Trust
Agreements and the Indenture, the execution, delivery and
performance by the Company of the Company Agreements, this
Agreement and any Pricing Agreement, and the consummation of the
transactions contemplated herein and therein will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject except for such conflict, breach,
violation or default which does not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, nor will
such action result in any violation of the provisions of the
Amended Article of Incorporation or Code of Regulations of the
Company or the charter or by-laws of any of its subsidiaries or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the issue of the Guarantees or the Junior Subordinated Debentures
or the consummation by the Company of the other transactions
contemplated by this Agreement, any Pricing Agreement or the
Company Agreements, except such as have been or will have been,
prior to each Time of Delivery, obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the issuance by the
Company of the Guarantees and the Junior Subordinated
Debentures;
(l) The Pricing Agreement with
respect to the Designated Securities (incorporating the provisions
hereof) and this Agreement each have been duly authorized, executed
and delivered by the Company and the Designated Trust.
(m) (A) (i) At the time of
filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) at the earliest
time after the filing of the Registration Statement that the
Designated Trust, the Company or another offering participant made
a bona fide offer (within the meaning of Rule 164(h)(2) under the
Act) of the Designated Securities, the Guarantee or the Junior
Subordinated Debentures, neither the Designated Trust nor the
Company was an “ineligible issuer” as defined in Rule
405 under the Act.
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3. Upon the execution of the Pricing
Agreement applicable to any Designated Securities and authorization
by the Representatives of the release of the Firm Designated
Securities, the several Underwriters propose to offer the Firm
Designated Securities for sale upon the terms and conditions set
forth in the Prospectus.
The Designated Trust may specify in
the Pricing Agreement applicable to any Designated Securities that
the Designated Trust thereby grants to the Underwriters the right
(an “Over-allotment Option”) to purchase at their
election up to the number of Optional Designated Securities set
forth in such Pricing Agreement, on the terms set forth in the
paragraph above, for the sole purpose of covering over-allotments
in the sale of the Firm Designated Securities. Any such election to
purchase Optional Designated Securities may be exercised by written
notice from the Representatives to the Designated Trust and the
Company, given within a period specified in the Pricing Agreement,
setting forth the aggregate number of Optional Designated
Securities to be purchased and the date on which such Optional
Designated Securities are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the
Representatives, the Designated Trust and the Company otherwise
agree in writing, earlier than or later than the respective number
of business days after the date of such notice set forth in such
Pricing Agreement.
The number of Optional Designated
Securities to be added to the number of Firm Designated Securities
to be purchased by each Underwriter as set forth in Schedule I to
the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated
Securities which the Designated Trust and the Company have been
advised by the Representatives have been attributed to such
Underwriter; provided that, if the Designated Trust and the
Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion
of Optional Designated Securities which the number of Firm
Designated Securities to be purchased by such Underwriter under
such Pricing Agreement bears to the aggregate number of Firm
Designated Securities (rounded as the Representatives may determine
to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate number of Firm Designated
Securities set forth in Schedule I to such Pricing Agreement plus
the aggregate number of Optional Designated Securities which the
Underwriters elect to purchase.
As compensation to the Underwriters
of the Designated Securities for their commitments hereunder and
under the Pricing Agreement, and in view of the fact that the
proceeds of the sale of the Designated Securities will be used by
the Designated Trust to purchase the Designated Junior Subordinated
Debentures of the Company, the Company agrees to pay at each Time
of Delivery to the account designated by the Representatives to the
Company, for the accounts of the several Underwriters, the amount
set forth in the Pricing Agreement per capital security for the
Designated Securities to be delivered at each Time of
Delivery.
4. Certificates for the Firm
Designated Securities and the Optional Designated Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in the form specified in such Pricing Agreement,
and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight
hours’ prior notice to the Designated Trust and the Company,
shall be delivered by or on behalf of the Designated Trust to the
Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the
purchase
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price therefor by wire transfer of Federal (same
day) Funds to an account designated by the Designated Trust,
(i) with respect to the Firm Designated Securities, all in the
manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the
Representatives, the Designated Trust and the Company may agree
upon in writing, such time and date being herein called the
“First Time of Delivery” and (ii) with respect to
the Optional Designated Securities, if any, in the manner and at
the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters’
election to purchase such Optional Designated Securities, or at
such other time and date as the Representatives, the Designated
Trust and the Company may agree upon in writing, such time and
date, if not the First Time of Delivery, herein called the
“Second Time of Delivery”. Each such time and date for
delivery is herein called a “Time of
Delivery”.
5. (A) The Designated Trust and the
Company, jointly and severally, agrees with each of the
Underwriters of any Designated Securities:
(a) To prepare the Prospectus in a
form approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day
following the execution and delivery the Pricing Agreement relating
to the Designated Securities or, if applicable, such earlier time
as may be required by Rule 424(b); to make no further amendment or
any supplement to the Registration Statement, the Basic Prospectus
or the Prospectus after the date of the Pricing Agreement relating
to such Securities and prior to any Time of Delivery for such
Securities which shall be disapproved by the Representatives for
such Securities promptly after reasonable notice thereof; to advise
the Representatives promptly of any such amendment or supplement to
the Registration Statement, the Basic Prospectus or the Prospectus
after any Time of Delivery for the Designated Securities and
furnish the Representatives with copies thereof; to prepare a final
term sheet, containing solely a description of the Securities, in a
form approved by you and to file such term sheet pursuant to Rule
433(d) under the Act within the time required by such Rule; to file
promptly all other material required to be filed by the Designated
Trust or the Company with the Commission pursuant to Rule 433(d)
under the Act; to file promptly all reports and any definitive
proxy or information statements required to be filed by the
Designated Trust or the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required in connection with the offering
or sale of the Designated Securities, and during such same period
to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus
relating to the Securities, of the issuance by the Commission of
any notice of objection of the use of the Registration Statement or
any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act, of the suspension of the qualification of the
Designated Securities or the Designated Junior Subordinated
Debentures for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or suspending any
such qualification, promptly to use its best efforts to obtain the
withdrawal of such order; and in the event of any such issuance of
a notice of objection, promptly to take such steps including,
without limitation, amending the Registration Statement or filing a
new registration statement, at its own expense, as may
be
8
necessary to permit offers and sales
of the Designated Securities or the Designated Junior Subordinated
Debentures by the Underwriters (references herein to the
Registration Statement shall include any such amendment or new
registration statement)
(b) Promptly from time to time to
take such action as the Representatives may reasonably request to
qualify such Designated Securities or the Designated Junior
Subordinated Debentures for offering and sale under the securities
laws of such jurisdictions as the Representatives may request and
to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Designated
Securities, provided that in connection therewith neither
the Designated Trust nor the Company shall be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) If required by Rule 430B(h)
under the Act, to prepare a form of prospectus in a form approved
by the Representatives, acting reasonably, and to file such form of
prospectus pursuant to Rule 424(b) under the Act not later than may
be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus which shall be
disapproved by the Representatives promptly after reasonable notice
thereof;
(d) If by the third anniversary (the
“Renewal Deadline”) of the initial effective date of
the Registration Statement, any of the Designated Securities remain
unsold by the Underwriters, the Company and the Designated Trust
(if applicable) will file, if it has not already done so and is
eligible to do so, a new automatic shelf registration statement
relating to the Securities, in a form reasonably satisfactory to
you. If at the Renewal Deadline the Company or the Designated Trust
is no longer eligible to file an automatic shelf registration
statement, the Company will, if it has not already done so, file a
new shelf registration statement relating to the Securities, the
Guarantees and the Junior Subordinated Debentures in a form
reasonably satisfactory to you and will use its commercially
reasonable efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The
Designated Trust and Company will take all other action necessary
or appropriate to permit the public offering and sale of the
Designated Securities and the Designated Junior Subordinated
Debentures to continue as contemplated in the expired registration
statement relating to the Securities and the Designated Junior
Subordinated Debentures. References herein to the Registration
Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may
be;
(e) Prior to 10:00 a.m., New York
City time, on the New York Business Day next succeeding the date of
the Pricing Agreement for such Designated Securities or some other
day as agreed by the Company and the Underwriters and from time to
time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the
offering or sale of the Designated Securities or the Designated
Junior Subordinated Debentures and if at such time any event shall
have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or
9
supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance;
(f) In the case of the Company, to
make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company,
Rule 158);
(g) During the period beginning from
the date of the Pricing Agreement for such Designated Securities
and continuing until the last Time of Delivery for such Designated
Securities or such longer period as may be agreed to by the Company
and set forth in the applicable Pricing Agreement, not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any Securities, any other beneficial interests in the
assets of the Designated Trust, or any capital securities or any
other securities of the Designated Trust or the Company, as the
case may be, that are substantially similar to such Designated
Securities (including any guarantee of such securities) or any
securities that are convertible into or exchangeable for, or that
represent the right to receive securities, capital securities or
any such substantially similar securities of either the Designated
Trust or the Company without the prior written consent of the
Representatives (other than shares of common stock of the
Company);
(h) In the case of the Company, to
issue the Guarantee concurrently with the issue and sale of the
Securities as contemplated herein or in the Pricing
Agreement;
(i) To pay the required Commission
filing fees relating to the Securities within the time required by
Rule 456(b)(1) under the Act and otherwise in accordance with
Rules 456(b) and 457(r) under the Act;
(j) Each of the Company and the
Designated Trust agrees that if at any time following issuance of
an Issuer Free Writing Prospectus any event occurred or occurs as a
result of which such Issuer Free Writing Prospectus would conflict
with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus or would include an untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will
give prompt notice thereof to the Representatives and, if requested
by the Representatives, will prepare and furnish without charge to
each Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission;
provided , however , that this representation and
warranty shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Designated
Trust or the Company by an Underwriter through the Representatives
expressly for use therein.
10
(B) The Company and the Designated
Trust agree, jointly and severally, with each of the Underwriters
of any Designated Securities that, unless it has obtained or will
obtain the prior written consent of the Representatives, and each
Underwriter, severally and not jointly, agrees with the Company,
the Designated Trust and the Representatives that, unless it has
obtained or will obtain, as the case may be, the prior written
consent of the Company, it has not made and will not make any offer
relating to the Designated Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a
free writing prospectus required to be filed by the Company or the
Designated Trust (if applicable) with the Commission or retained by
the Company under Rule 433, other than the information contained in
any final term sheet prepared and filed pursuant to
Section 5(A)(a) hereof; provided that the prior written
consent of the parties hereto shall be deemed to have been given in
respect of the free writing prospectuses, if any, included in
Schedule III to the Pricing Agreement relating to the Designated
Securities; and provided further that no such consent shall
be necessary or shall be deemed to have been given with respect to
any “free writing prospectus” (as defined by Rule 405
under the Act) containing customary information and prepared by the
Underwriters for use by the Underwriters on Bloomberg screens or
similar communications. Any such free writing prospectus consented
to by the Representatives, the Company and the Designated Trust is
hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company and the Designated Trust each agrees
that (i) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (ii) the Company and, if applicable, the
Designated Trust has complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 under the Act applicable
to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record
keeping.
6. The Company covenants and agrees
with the several Underwriters that it will pay or cause to be paid
the following: (i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the
registration of the Securities, the Guarantees and the Junior
Subordinated Debentures under the Act and all other expenses in
connection with the preparation, printing and filing of the
Registration Statement,
