Exhibit 1.1
4,000,000 Shares
of 7.25% Non-Cumulative Perpetual
Convertible Preferred Stock, Series P
LEHMAN BROTHERS
HOLDINGS INC.
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
“ Securities ”) of the Company’s
convertible preferred stock, par value $1.00 per share (the “
Preferred Stock ”) identified in Schedule I
hereto. The terms of the Preferred Stock will be set forth in
a certificate of designations (the “ Certificate of
Designations ”) to be filed by the Company with the
Secretary of State of the State of Delaware. The Securities
will be convertible into shares of common stock, par value $0.10
per share (the “ Common Stock ”), of the Company
(the shares of Common Stock into which the Securities are
convertible, the “ Conversion Shares ”), plus
cash in lieu of fractional shares. 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 Securities 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 Securities (File No.333-134553)
(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 Securities;
(iii)
“ Effective Date ” means any date as of which
any part of the Registration Statement relating to the
Securities 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);
(iv)
“ 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 Securities, including the Term Sheet;
(v)
“ Preliminary Prospectus ” means any preliminary
prospectus relating to the Securities, 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) ”);
(vi)
“ 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
III hereto, other than a road show that is an Issuer Free Writing
Prospectus under Rule 433;
(vii)
“ Prospectus ” means the final prospectus
relating to the Securities, including the Base Prospectus and any
prospectus supplement thereto, as filed with the Commission
pursuant to Rule 424(b);
(viii)
“ 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
(ix)
“ 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
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amendment to the
Registration Statement, any prospectus supplement relating to the
Securities 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 Securities, 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, the most recent Preliminary Prospectus conformed 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 Closing 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 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
required to be stated therein necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
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(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 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 Securities 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 III
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 Securities 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.
(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
most recent Preliminary Prospectus, 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
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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 most recent Preliminary
Prospectus, 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 Securities when issued will 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.
(l)
This Agreement has been duly authorized, executed and delivered by
the Company.
(m)
The execution and delivery of this Agreement by the Company,
t he issuance of
the Securities and the Conversion Shares initially issuable by the
Company upon conversion of the Securities in accordance with the
terms of the Certificate of Designations or compliance by the Company with all of
the provisions of this Agreement and the Certificate of
Designations 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 ”).
“ 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.
(n)
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
5
consent, authorization or order of, or filing
or registration with, any court or governmental agency is required
for the execution
and delivery of this Agreement by the Company, the issuance of the
Securities by the Company, the issuance of the Conversion Shares initially
issuable by the Company upon conversion of the Securities in
accordance with the terms of the Certificate of Designations
or compliance by the
Company with all of the provisions of this Agreement and the
Securities.
(o)
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 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 and the 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.
(p)
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.
(q)
The Company is not, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the most recent Preliminary Prospectus, an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “ 1940
Act ”).
6
(r)
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 Securities 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.
(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 expect to have a
Material Adverse Effect.
(t)
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.
(u)
The Conversion Shares have been duly and validly authorized and
reserved for issuance upon conversion of the Securities and are
free of preemptive rights; and all Conversion Shares, when so
issued and delivered upon such conversion in accordance with the
terms of the Certificate of Designations related thereto, will be
duly and validly issued, fully paid and nonassessable and free and
clear of any liens and will conform, when issued, in all material
respects to the descriptions thereof in the Pricing Disclosure
Package and the Prospectus.
2.
Sale and Purchase of the Securities . 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 to purchase from the Company, at the purchase price set
forth in Schedule I hereto, the number of Securities set forth
opposite the name of such Underwriter in Schedule II
hereto.
The obligations of
the Underwriters under this Agreement are several and not
joint.
3.
Delivery and Payment . Delivery by the Company of the
Securities 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 Securities being herein called the “
Closing Date ”).
7
The Securities
will be registered in such names as the Representative(s) may
request no less than two full business days in advance of the
Closing Date and shall be delivered to the Underwriters through the
book-entry facilities of The Depository Trust Company (“
DTC ”), unless the Company and the
Representative(s) agree otherwise in writing. The Company
agrees to have the Securities available for inspection, checking
and packaging by the Representative(s) at such place as is
designated by the Representative(s), not later than 1:00 p.m.,
New York City time, on the business day prior to the Closing
Date.
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
Securities 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 Securities 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 Securities containing customary
information not inconsistent with the Term Sheet prepared and filed
by the Company pursuant to Section 5(a) below or
otherwise containing “issuer information” (as defined
in Rule 433) contained in any document filed by the Company
with the Commission prior to the use of such free writing
prospectus.
The
Underwriters agree
that they, to their best knowledge after due inquiry, will comply
with all applicable laws and regulations in force in any
jurisdiction in which they offer or sell the Securities or
possesses or distributes the Prospectus, any Preliminary Prospectus
or any Issuer Free Writing Prospectus or any other offering
material and will obtain any consent, approval or permission
required by them for the offer or sale by them of the Securities
under the laws and regulations in force in any jurisdiction to
which they are subject or in which they make such offers or sales,
including those set forth under the caption “Selling
Restrictions” in the section entitled
“Underwriting” in the most recent Preliminary
Prospectus.
5.
Agreements . The Company agrees with the several
Underwriters that:
(a)
The Company will cause the Preliminary Prospectus and 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 such Preliminary Prospectuses
or the Prospectus shall have been filed with the Commission
pursuant to Rule 424(b), (B) when any amendment to the
Registration Statement relating to the Securities 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
8
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 Securities 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 Securities 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 4 that the offering
of Securities has terminated, (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 Securities (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 Securities; 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 any amendment of
the Registration Statement containing an amended Prospectus to be
made effective as soon as possible.
9
(c)
To the extent such information is not filed with the Commission via
EDGAR, the Company will deliver to the Representative(s), without
charge, (i) signed copies of the Registration Statement
relating to the Securities 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 Closing 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 Securities that
would constitute and 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 III hereto).
(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 Securities
for offering and sale under the laws of such jurisdictions as the
Representative(s) may designate and will maintain such
qualifications in effect so long as required for the sale of the
Securities; provided, however, that the Company shall not be
required to qualify to do business in any
10
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)
The Company will use its best efforts to cause the Securities and
the Conversion Shares to be listed on the New York Stock Exchange
as soon as practicable.
(j)
For a period beginning on the date of execution of this Agreement
and ending on the 90th day after the date of execution of this
Agreement, without the prior written consent of the
Representative(s), the Company agrees not to, directly or
indirectly, offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at
any time in the
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