Exhibit 1.1
Depositary
Shares
LEHMAN BROTHERS
HOLDINGS INC.
FORM OF
UNDERWRITING
AGREEMENT
New York, New
York
Dated the date set
forth
In Schedule I
hereto
To the
Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II
hereto
Ladies and
Gentlemen:
Lehman Brothers
Holdings Inc., a Delaware corporation (the “ Company
”), proposes to issue and sell to you and the other
underwriters named in Schedule II hereto (the “
Underwriters ”), for whom you are acting as
representative(s) (the “ Representative(s)
”), the number of shares identified in Schedule I hereto (the
“ Firm Shares ”) of the Company’s
preferred stock, par value $1.00 per share (the “
Preferred Stock ”) identified in Schedule I
hereto. In addition, if so indicated in Schedule I the
Company proposes to grant to the Underwriters an option to purchase
up to an additional number of shares of the Preferred Stock
identified in Schedule I hereto on the terms and for the purposes
set forth in Section 2 (the “ Option Shares
”). The Firm Shares and the Option Shares, if
purchased, are hereinafter collectively called the “
Shares ”. The Shares are to be deposited by you
or on your behalf against delivery of Depositary Receipts (the
“ Depositary Receipts ”) to be issued by the
depositary identified in Schedule I hereto (the “
Depositary ”), under a Deposit Agreement (the “
Deposit Agreement ”), among the Company, the
Depositary and holders from time to time of the Depositary Receipts
issued thereunder. The Depositary Receipts will evidence
Depositary Shares (the “ Depositary Shares ”),
and each Depositary Share will represent the fraction of a share of
Preferred Stock identified in Schedule I. The number of
Depositary Shares in respect of Firm Shares to be purchased by each
Underwriter is identified in Schedule II. If the firm or
firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms “
Underwriters ” and “ Representative(s)
” shall each be deemed to refer to such firm or firms.
This is to confirm the agreement concerning the purchase of the
Shares from the Company by the Underwriters named in Schedule II
hereto.
1.
Representations and Warranties . The Company
represents and warrants to each Underwriter that:
(a)
An “automatic shelf registration statement” (as defined
in Rule 405 (“ Rule 405 ”) under the
Securities Act of 1933, as amended (the “ Securities
Act ”)) relating to the
Shares and the Depositary Shares (File
No. 333- )
(i) has been prepared by the Company in conformity with the
requirements of the Securities Act and the rules and
regulations (the “ Rules and Regulations ”)
of the Securities and Exchange Commission (the “
Commission ”) thereunder; (ii) has been filed
with the Commission under the Securities Act not earlier than the
date that is three years prior to the date hereof; and
(iii) is effective under the Securities Act. Copies of
such registration statement and any amendment thereto have been
delivered by the Company to you as the Representative(s) of
the Underwriters. As used in this Agreement:
(i)
“ Applicable
Time ” means the Applicable Time specified in Schedule I
hereto on the date of this Agreement;
(ii)
“ Base
Prospectus ” means the base prospectus filed as part of
the Registration Statement, in the form in which it has most
recently been amended on or prior to the date of this Agreement,
relating to the Shares and the Depositary Shares;
(iii)
“ Effective
Date ” means any date as of which any part of the
Registration Statement relating to the Shares and the Depositary
Shares became, or is deemed to have become, effective under the
Securities Act in accordance with the Rules and Regulations
(including pursuant to Rule 430B of the Rules and
Regulations);
(iii)
“ Issuer Free
Writing Prospectus ” means each “issuer free
writing prospectus” (as defined in Rule 433 of the
Rules and Regulations (“ Rule 433 ”))
in connection with the offering of the Shares and the Depositary
Shares, including the Term Sheet;
(iv)
“ Preliminary
Prospectus ” means any preliminary prospectus relating to
the Shares and the Depositary Shares, including the Base Prospectus
and any prospectus supplement thereto, as filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations
(“ Rule 424(b) ”);
(v)
“ Pricing
Disclosure Package ” means, as of the Applicable Time,
the most recent Preliminary Prospectus, together with each Issuer
Free Writing Prospectus filed or used by the Company on or before
the Applicable Time and identified on Schedule IV hereto, other
than a road show that is an Issuer Free Writing Prospectus under
Rule 433;
(vi)
“ Prospectus
” means the Prospectus relating to the Shares and the
Depositary Shares, including the Base Prospectus and any prospectus
supplement thereto, as filed with the Commission pursuant to
Rule 424(b);
(vii)
“ Registration
Statement ” means, collectively, the various parts of the
above-referenced registration statement, each as amended as of the
Effective Date for such part, including any Preliminary Prospectus
or Prospectus deemed to be a part thereof pursuant to
Rule 430B of the Rules and Regulations, and all exhibits
to such registration statement; and
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(viii)
“ Term Sheet
” means the term sheet prepared pursuant to
Section 5(a) of the Agreement and substantially in the
form attached hereto in Schedule V.
Any
reference to the “ most recent Preliminary Prospectus
” shall be deemed to refer to the latest Preliminary
Prospectus included in the Registration Statement or filed pursuant
to Rule 424(b) on or prior to the date hereof. Any
reference to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents incorporated by
reference therein pursuant to Form S-3 under the Securities
Act as of the date of such prospectus. Any reference to any
amendment or supplement to 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 Shares and the Depositary
Shares filed with the Commission pursuant to
Rule 424(b) and any document filed under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), after the date of such prospectus and incorporated by
reference therein; and any reference to any amendment to the
Registration Statement shall be deemed to include any Annual Report
of the Company on Form 10-K filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act after
the Effective Date that is incorporated by reference in the
Registration Statement.
The
Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus or suspending the effectiveness of the
Registration Statement, and no proceeding or examination for such
purpose has been instituted or, to the Company’s knowledge,
threatened by the Commission. The Commission has not notified
the Company of any objection to the use of the form of the
Registration Statement pursuant to Rule 401(g)(2) of the
Rules and Regulations.
(b)
The Company has been since
the time of initial filing of the Registration Statement and
continues to be a “well-known seasoned issuer” eligible
to use Form S-3 for the offering of the Shares and the
Depositary Shares, including not having been an “ineligible
issuer” (as such terms are defined in Rule 405) at any
such time or date.
(c)
The Registration Statement
conformed on the Effective Date and 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 Securities Act and the Rules and
Regulations; the Registration Statement and any post-effective
amendments thereto do not and will not, as of the applicable
Effective Date, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus and any amendment or supplement thereto will not, as of
its date and as of the Delivery Date, contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading; provided , however , that this
representation or warranty shall not apply to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company by or through the
Representative(s) on behalf of
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any
Underwriter specifically for inclusion therein (which information
is specified in Section 8(e) hereof).
(d)
The documents incorporated
by reference into any Preliminary Prospectus and the Prospectus, at
the time they were or are filed with the Commission, conform or
will conform, as the case may be, in all material respects with the
requirements of the Securities Act and the Rules and
Regulations and the Exchange Act and the rules and regulations
adopted by the Commission thereunder, and did not or will not, as
the case may be, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(e)
The Pricing Disclosure
Package did not, as of the Applicable Time, 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 that no representation or
warranty is made as to information contained in or omitted from the
Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company by or through the
Representative(s) on behalf of any Underwriter specifically
for inclusion therein (which information is specified in
Section 8(e) hereof).
(f)
The Company has not made
and will not make any offer relating to the Shares and the
Depositary Shares that would constitute an Issuer Free Writing
Prospectus without the prior consent of the
Representative(s) (which consent is deemed to have been given
for any Issuer Free Writing Prospectus identified on Schedule IV
hereto); the Company has complied and will comply with the
requirements of Rule 433 with respect to any such Issuer Free
Writing Prospectus; any such Issuer Free Writing Prospectus will
not, as of its issue date and through the time the Shares and the
Depositary Shares are delivered pursuant to Section 3 hereof,
include any information that conflicts with the information
contained in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus; and any such Issuer Free
Writing Prospectus, when taken together with the information
contained in the Registration Statement and the most recent
Preliminary Prospectus, did not, when issued or filed pursuant to
Rule 433, and does not contain an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that this representation or warranty shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by or
through the Representative(s) on behalf of any Underwriter
specifically for inclusion therein (which information is specified
in Section 8(e) hereof).
(g)
The independent registered
public accounting firm whose report appears in the Company’s
most recent Annual Report on Form 10-K, which is incorporated
by reference in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus, are independent
registered public accountants as required by the Securities Act and
the Rules and Regulations.
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(h)
In the event that a report
of a nationally recognized independent registered public accounting
firm regarding historical financial information with respect to any
entity acquired by the Company is required to be incorporated by
reference in the Prospectus, such independent public accountants
were independent public accountants, as required by the Securities
Act and the Rules and Regulations, during the period of their
engagement to examine the financial statements being reported on
and at the date of their report.
(i)
The audited consolidated
financial statements of the Company in the Prospectus and the
Registration Statement present fairly on a consolidated basis the
financial position, the results of operations, changes in common
stock and stockholder’s equity and cash flows of the Company
and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved. The unaudited consolidated
financial statements of the Company, if any, included in the
Prospectus and the Registration Statement and the related notes are
true, complete and correct, subject to normally recurring changes
resulting from year-end audit adjustments, and have been prepared
in accordance with Regulation S-X of the Rules and
Regulations.
(j)
Except as described in or
contemplated by the most recent Preliminary Prospectus and the
Prospectus, there has not been any material adverse change in or
any adverse development which materially affects the business,
properties, financial condition or results of operations of the
Company or the Company and its subsidiaries taken as a whole, from
the dates as of which information is given in the most recent
Preliminary Prospectus.
(k)
The Company has an
authorized capitalization as set forth in each of the most recent
Preliminary Prospectus and the Prospectus, and all of the issued
shares of capital stock of the Company have been duly authorized
and validly issued, are fully paid and non-assessable, conform in
all material respects to the description thereof contained in the
most recent Preliminary Prospectus and were issued in compliance
with federal and state securities laws and not in violation of any
preemptive right, resale right, right of first refusal or similar
right.
(l)
The Shares conform to the
description thereof contained in the Pricing Disclosure Package and
the Prospectus, are duly and validly authorized, and, when issued
and delivered against payment therefor as provided in this
Agreement, will be validly issued, fully paid and
non-assessable. The Depositary Shares representing the Shares
have been duly and validly authorized by the Company; and assuming
the due execution by the Depositary of the Deposit Agreement and
the due execution by the Depositary and, if required by the Deposit
Agreement, the Registrar of the Depositary Receipts in accordance
with the terms of the Deposit Agreement and upon the deposit by or
on behalf of the Underwriters of the Shares with the Depositary
pursuant to the Deposit Agreement, the Depositary Shares will
represent legal and valid interests in the Shares and the
Depositary Receipts will constitute valid evidence of such
interests in the Shares and will be entitled to the benefits of the
Deposit Agreement.
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(m)
The Deposit Agreement has
been duly and validly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by
the Depositary, is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights
generally from time to time in effect, to general equitable
principles (whether considered in a proceeding at law or in equity)
and to an implied covenant of good faith and fair dealing.
The Deposit Agreement conforms in all material respects to the
description thereof in the Pricing Disclosure Package and the
Prospectus.
(n)
This Agreement has been
duly authorized, executed and delivered by the Company.
(o)
The execution and delivery
of this Agreement by the Company, the execution and delivery of the
Deposit Agreement, the issuance of the Shares by the Company or
compliance by the Company with all of the provisions of this
Agreement, the Deposit Agreement and the Shares will not (i) conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company or any of its Significant Subsidiaries
pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument, (ii) result in a violation
of the organizational documents of the Company or any of its
Significant Subsidiaries or (iii) result in the violation of
any statute or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of
its Significant Subsidiaries or their property, except in the case
of clauses (i) and (iii) above for such conflict or
violation that would not reasonably be expected, individually or in
the aggregate, to have a material adverse effect on the business,
properties, financial condition or results of operations of the
Company or the Company and its subsidiaries taken as a whole (a
“ Material Adverse Effect ”).
(p)
Except as set forth in the
most recent Preliminary Prospectus or as required by the Securities
Act, the Exchange Act and applicable state securities laws, no
consent, authorization or order of, or filing or registration with,
any court or governmental agency is required for the execution,
delivery and performance of this Agreement or the Deposit
Agreement. “ Significant Subsidiary ”
means any
subsidiary of the Company with assets greater than or equal to 7.5%
of the assets of the Company and its subsidiaries determined on a
consolidated basis in accordance with GAAP (the “
Consolidated Assets ”). For the purposes of this
definition, the Consolidated Assets at any time shall be determined
on the basis of the financial statements in the Company’s
most recent Quarterly Report on Form 10-Q or Annual Report on
Form 10-K, as the case may be, filed with the
Commission.
(q)
Each of the Company and
the Significant Subsidiaries have been duly organized, are validly
existing and in good standing under the laws of their respective
jurisdictions of formation, are duly qualified to do business and
in good standing as foreign corporations and are duly registered as
a broker-dealer, broker, dealer or investment advisor, as the case
may be, in each jurisdiction in which their respective
6
ownership of property or the conduct of their
respective businesses requires such qualification or registration,
except for such jurisdictions in which the failure to qualify, to
be in good standing or to register would not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect. Each of the Company and the Significant
Subsidiaries holds all licenses, permits, and certificates from
governmental authorities necessary for the conduct of its business
and owns, or possesses adequate rights to use, all rights necessary
for the conduct of such business and has not, to the
Company’s knowledge, received any notice of conflict with the
asserted rights of others in respect thereof, except in each case
where the failure to do so would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect; and each of the Company and the Significant Subsidiaries
has the power and authority necessary to own or hold its properties
and to conduct the businesses in which it is engaged. Neither
the Company nor any of the Significant Subsidiaries is in violation
of its organizational documents or in default under any agreement,
indenture or instrument, the effect of which violation or default
would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect. Except as may be disclosed
in the most recent Preliminary Prospectus, all outstanding shares
of capital stock of the Significant Subsidiaries have been duly
authorized and are validly issued and outstanding, fully paid and
non-assessable and, except for directors’ qualifying shares,
are owned by the Company, directly or indirectly through
subsidiaries, free and clear of any lien, pledge and encumbrance or
any claim of any third party.
(r)
Except as described in the
most recent Preliminary Prospectus and the Prospectus, there is no
litigation or governmental proceeding pending or, to the knowledge
of the Company, threatened against the Company or any of its
subsidiaries which might reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect or which is
required to be disclosed in the most recent Preliminary Prospectus
and the Prospectus.
(s)
Since the date of the
latest audited financial statements included or incorporated in the
most recent Preliminary Prospectus, there shall not have
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated
in the most recent Preliminary Prospectus, in each case except as
could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(t)
The Company has not taken
and will not take, directly or indirectly, any action designed to
or that has constituted or that could reasonably be expected to
cause or result in the unlawful stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Depositary Shares or shares of the Preferred
Stock.
(u)
The Company is not, after
giving effect to the offering and sale of the Shares and the
Depositary Shares and the application of the proceeds thereof as
described
7
in
the most recent Preliminary Prospectus, an “investment
company” within the meaning of the Investment Company Act of
1940, as amended.
(v)
The certificates delivered
pursuant to paragraph (e) of Section 6 hereof and all
other documents delivered by the Company or its representatives in
connection with the issuance and sale of the Shares and the
Depositary Shares were on the dates on which they were delivered,
or will be on the dates on which they are to be delivered, in all
material respects true and complete.
2.
Sale and Purchase of
the Shares . The Company agrees to sell to each
Underwriter, and each Underwriter, on the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein stated, agrees,
severally and not jointly, to purchase from the Company the number
of Firm Shares set forth opposite the name of each Underwriter in
Schedule II hereto. The obligations of the Underwriters under
this Agreement are several and not joint.
In addition, the
Company grants to the Underwriters an option to purchase up to an
additional number of Option Shares indicated in Schedule I
hereto. Each Underwriter agrees, severally and not jointly,
to purchase from the Company the number of Option Shares set forth
opposite the name of each Underwriter in Schedule II
hereto.
The price of both
the Firm Shares and any Option Shares shall be the price per share
indicated in Schedule I hereto.
3.
Delivery and
Payment .
Delivery by the Company of the Firm Shares to the
Representative(s) for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire
transfer of immediately available (federal) funds to, or upon the
order of, the Company shall take place at the office, on the date
and at the time specified in Schedule I hereto, which date and time
may be postponed by agreement between the
Representative(s) and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment
for the Firm Shares being herein called the “ First
Delivery Date ”). The certificates representing the
Firm Shares will be delivered by the Representative(s) to, and
deposited with, the Depositary against delivery of Depositary
Receipts representing Depositary Shares issued in respect of such
Firm Shares. Such Depositary Receipts shall be issued in such
denominations and registered in such names as the
Representative(s) shall request, and will be delivered through
the facilities of The Depository Trust Company (“DTC”)
unless the Company and the Representative(s) shall otherwise
agree.
The option granted
in Section 2 will expire 30 days after the date of this
Agreement and may be exercised in whole or from time to time in
part by written notice being given to the Company by the
Representative(s); provided that if such date falls on a day
that is not a business day, the option granted in Section 2
will expire on the next succeeding business day. Such notice
shall set forth the aggregate number of Depositary Receipts
representing Depositary Shares in respect of such Option Shares as
to which the option is being exercised, the names in which such
Depositary Receipts are to be registered, the denominations in
which such Depositary Receipts are to be issued and the date and
time, as determined by the Representative(s), when such Depositary
Receipts are to be delivered provided, however, that this date and
time shall not be
8
earlier than the
First Delivery Date nor earlier than 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 on which the option
shall have been exercised. The date and time the Option
Shares are delivered are sometimes referred to as the “
Second Delivery Date ” and the First Delivery Date and
the Second Delivery Date are sometimes referred to as a “
Delivery Date ”.
Delivery by the
Company of the Option Shares to the Representative(s) for the
respective accounts of the several Underwriters and payment by the
Underwriters therefor by wire transfer of immediately available
(federal) funds to, or upon the order of, the Company shall take
place at the office and at the time specified in Schedule I hereto,
on the Second Delivery Date, which date and time may be postponed
by agreement between the Representative(s) and the Company or
as provided in Section 9 hereof. The certificates
representing the Option Shares will be delivered by the
Representative(s) to, and deposited with, the Depositary
against delivery of Depositary Receipts representing Depositary
Shares issued in respect of such Option Shares. Such
Depositary Receipts shall be issued in such denominations and
registered in such names as the Representative(s) shall
request, and will be delivered through the facilities of DTC unless
the Company and the Representative(s) shall otherwise
agree.
4.
Offering by
Underwriters . The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or
cause to be distributed any Preliminary Prospectus and the Pricing
Disclosure Package and are authorized to distribute the Prospectus
(as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the
Underwriters). The Representative(s) agree that, as soon
as the Representative(s) believe the offering of the
Depositary Shares has been terminated, the
Representative(s) will so advise the Company.
Each Underwriter
severally represents and warrants to, and agrees with, the Company
and each other Underwriter that it has not made, and will not make,
any offer relating to the Shares and the Depositary Shares that
would constitute a “free writing prospectus” (as
defined in Rule 405), without the prior written consent of the
Company and the Representative(s), other than one or more free
writing prospectuses relating to the Shares and the Depositary
Shares containing customary information not inconsistent with the
Term Sheet prepared and filed by the Company pursuant to
Section 5(a) below.
If the Shares and
the Depositary Shares are offered outside of the United States, the
Underwriters further agree to make the representations and
warranties to the Company as set forth in Schedule III.
5.
Agreements
. The Company agrees
with the several Underwriters that:
(a)
The Company will cause the
Prospectus to be filed with the Commission pursuant to
Rule 424(b) as required thereby and will prepare the
final term sheet substantially in the form set forth on Schedule V
hereto and approved by the Representative(s) and file such
term sheet pursuant to Rule 433(d) of the Rules and
Regulations (“ Rule 433(d) ”) as required
thereby. The Company will promptly advise the
Representative(s) (A) when the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b),
(B) when any amendment to the Registration Statement
relating
9
to
the Shares and the Depositary Shares shall have become effective,
(C) of any request by the Commission for any amendment of the
Registration Statement, the Prospectus or any Preliminary
Prospectus, or for any additional information, (D) of the
issuance by the Commission of any stop order preventing or
suspending the use of the Prospectus, any Preliminary Prospectus or
any Issuer Free Writing Prospectus, or the effectiveness of the
Registration Statement or any part thereof or the initiation or
threat of any stop order proceeding and will use its best efforts
to prevent the issuance of any stop order and to obtain as soon as
possible its lifting, if issued, (E) of the receipt by the
Company of any notification by the Commission of any objection to
the use of the form of the Registration Statement pursuant to
Rule 401(g)(2) of the Rules and Regulations and
(F) of the receipt by the Company of any order with respect to
the suspension of the qualification of the Shares and the
Depositary Shares for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose. The Company will
use its best efforts to prevent the issuance of any order referred
to in clause (D) or (F) and, if issued, to obtain as soon
as possible the withdrawal thereof. In the event of its
receipt of any notification referred to in clause (E), the Company
will promptly take such steps including, without limitation,
amending the Registration Statement or filing a new registration
statement, at its own expense, as may be necessary to permit offers
and sales of the Shares and the Depositary Shares by the
Underwriters (and references herein to the “Registration
Statement” shall include any such amendment or new
registration statement). Prior to receipt of the advice to be
given by the Representative(s) pursuant to Section 6,
(x) the Company will not file any amendment of the
Registration Statement or amendment or supplement to the Prospectus
(except an amendment or supplement to the Prospectus that is deemed
to be incorporated by reference in the Prospectus pursuant to
Form S-3) without the consent of the Representative(s), and
(y) the Company will not file any document that would be
deemed to be incorporated by reference in the Prospectus pursuant
to Form S-3 without delivering to the Representative(s) a
copy of the document proposed to be so filed, such delivery to be
made at least 24 hours prior to such filing, and the Company will
consult with the Representative(s) as to any comments which
the Representative(s) make in a timely manner with respect to
the document so delivered.
(b)
Subject to the last
sentence of the immediately preceding paragraph, if, at any time
during which a prospectus relating to the Shares and the Depositary
Shares (or in lieu thereof, the notice referred to in Rule 172
of the Rules and Regulations) is required to be delivered
under the Securities Act, any event occurs as a result of which the
Pricing Disclosure Package or the Prospectus would include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Pricing Disclosure Package or
the Prospectus to comply with the Securities Act , the Company will
notify the Representative(s) promptly to suspend solicitation
of purchases of the Shares and the Depositary Shares; and if the
Company shall decide to amend or supplement the Registration
Statement, the Pricing Disclosure Package or the Prospectus, it
will promptly advise the Representative(s) by telephone (with
confirmation in writing) and will promptly prepare and file with
the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance and will use its best efforts to cause
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any
amendment of the Registration Statement containing an amended
Prospectus to be made effective as soon as possible.
(c)
The Company will deliver
to the Representative(s), without charge, (i) signed copies of
the Registration Statement and of any amendments thereto (including
all exhibits filed with, or incorporated by reference in, any such
document) and (ii) as many conformed copies of the
Registration Statement and of any amendments thereto which shall
become effective on or before the First Delivery Date (excluding
exhibits) as the Representative(s) may reasonably
request.
(d)
During such period as a
prospectus (or in lieu thereof, the notice referred to in
Rule 172 of the Rules and Regulations) is required by law
to be delivered by an Underwriter or dealer, the Company will
deliver, without charge to the Representative(s) and to
Underwriters and dealers, at such office or offices as the
Representative(s) may designate, as many written and
electronic copies of the most recent Preliminary Prospectus, the
Prospectus and each Issuer Free Writing Prospectus as the
Representative(s) may reasonably request.
(e)
The Company will not make
any offer relating to the Shares and the Depositary Shares that
would constitute an Issuer Free Writing Prospectus (other than the
Term Sheet prepared and filed pursuant to
Section 5(a) hereof) without the prior written consent of
the Representative(s).
(f)
The Company will file
promptly all material required to be filed by the Company with the
Commission pursuant to Rule 433(d), will retain in accordance
with Rule 433(g) of the Rules and Regulations all
Issuer Free Writing Prospectuses not required to be filed pursuant
to the Rules and Regulations; and if at any time after the
date hereof any events shall have occurred as a result of which any
Issuer Free Writing Prospectus, as then amended or supplemented,
would conflict with the information in the Registration Statement,
the most recent Preliminary 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 under which they were made, not
misleading, or, if for any other reason it shall be necessary to
amend or supplement any Issuer Free Writing Prospectus, to notify
the Representative(s) and, upon its request, to file such
document and to prepare and furnish without charge to each
Underwriter as many copies as the Representative(s) may from
time to time reasonably request of an amended or supplemented
Issuer Free Writing Prospectus that will correct such conflict,
statement or omission or effect such compliance.
(g)
The Company will make
generally available to its security holders and to the
Representative(s) as soon as practicable an earnings statement
which will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Rules and Regulations
under the Securities Act.
(h)
The Company will furnish
such information, execute such instruments and take such actions as
may be required to qualify the Shares and the Depositary Shares for
offering and sale under the laws of such jurisdictions as the
Representative(s) may
11
designate and will maintain such qualifications
in effect so long as required for the sale of the Shares and the
Depositary Shares; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction
where it is not now so subject.
(i)
If the Company has applied
for the listing of the Shares or Depositary Shares on a securities
exchange, it will use its best efforts to cause such listing to be
approved as soon as possible.
(j)
For a period beginning at
the time of execution of this Agreement and ending on the First
Delivery Date, without the prior consent of the Representative(s),
the Company will not offer, sell, contract to sell or otherwise
dispose of any shares of preferred stock of the Company (other than
the Shares and the D
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