Exhibit 1.1
EXECUTION COPY
NORTHERN TRUST
CORPORATION
(Delaware
corporation)
Common Stock, par
value $1.66 2
/
3
per
share
UNDERWRITING
AGREEMENT
Dated: April 28,
2009
NORTHERN TRUST CORPORATION
(Delaware corporation)
Common Stock, par value $1.66
2/3 per share
UNDERWRITING
AGREEMENT
April 28, 2009
Goldman, Sachs &
Co.
85 Broad Street
New York, NY 10004
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, NY 10036
as Representatives of the several
Underwriters identified on Schedule A hereto
Ladies and Gentlemen:
Northern Trust
Corporation, a Delaware corporation (the “Company”),
confirms its agreement with Goldman, Sachs & Co.
(“Goldman Sachs”) and Morgan Stanley & Co.
Incorporated (“Morgan Stanley”) and each of the other
Underwriters named in Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof), for whom Goldman Sachs and Morgan Stanley are acting as
representatives (in such capacity, the
“Representatives”), with respect to the issue and sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of an aggregate of 15,000,000 shares
(the “Firm Securities”) and, at the election of the
Representatives on behalf of the Underwriters, up to 2,250,000
additional shares (the “Optional Securities”) of Common
Stock, par value $1.66 2
/
3 per share (the
“Stock”), of the Company (the Firm Securities and the
Optional Securities that the Underwriters elect to purchase
pursuant to Section 2(a) hereof being collectively called the
“Securities”).
The Company understands that the
Underwriters propose to make a public offering of the Securities as
soon as the Representatives deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the
Securities and Exchange Commission (the “Commission”)
an automatic shelf registration statement on Form S-3 (No.
333-152678), including the related preliminary prospectus or
prospectuses, which registration statement became effective upon
filing under Rule 462(e) of the rules and regulations of the
Commission (the “1933 Act Regulations”) under the
Securities Act of 1933, as amended (the “1933
Act”).
Such registration statement covers the
registration of the Securities under the 1933 Act. Promptly after
execution and delivery of this Agreement, the Company will prepare
and file a prospectus in accordance with the provisions of Rule
430B (“Rule 430B”) of the 1933 Act Regulations and
paragraph (b) of Rule 424 (“Rule 424(b)”) of the
1933 Act Regulations. Any information included in such prospectus
that was omitted from such registration statement at the time it
became effective but that is deemed to be part of and included in
such registration statement pursuant to paragraph (b) of Rule
430B is referred to as “Rule 430B Information.” Each
prospectus used in connection with the offering of the Securities
that omitted Rule 430B Information is herein called a
“preliminary prospectus.” Such registration statement,
at any given time, including the amendments thereto to such time,
the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at such time and the documents otherwise
deemed to be a part thereof or included therein by 1933 Act
Regulations, is herein called the “Registration
Statement.” The Registration Statement at the time it
originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form
first furnished to the Underwriters for use in connection with the
offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at the time of the execution of this Agreement and any
preliminary prospectuses that form a part thereof, is herein called
the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“EDGAR”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
“1934 Act”), which is incorporated by reference in or
otherwise deemed by 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary prospectus
or the Prospectus, as the case may be.
SECTION 1. Representations and
Warranties .
(a) Representations and
Warranties by the Company . The Company represents and warrants
to each Underwriter as of the date hereof, the Applicable Time
referred to in Section 1(a)(i) hereof and as of each Closing
Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Status as a Well-Known
Seasoned Issuer . (A) At the time of filing the Original
Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the 1934
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Act or form of prospectus), (C) at the time
the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) of the 1933 Act Regulations)
made any offer relating to the Securities in reliance on the
exemption of Rule 163 of the 1933 Act Regulations and (D) at
the date hereof, the Company was and is a “well-known
seasoned issuer” as defined in Rule 405 of the 1933 Act
Regulations (“Rule 405”), including not having been and
not being an “ineligible issuer” as defined in Rule
405. The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405, and the
Securities, since their registration on the Registration Statement,
have been and remain eligible for registration by the Company on a
Rule 405 “automatic shelf registration statement.” The
Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of
the automatic shelf registration statement form.
At the time of filing the Original
Registration Statement, at the earliest time thereafter that the
Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) of the 1933 Act Regulations)
of the Securities and at the date hereof, the Company was not and
is not an “ineligible issuer,” as defined in Rule
405.
(ii) Registration Statement,
Prospectus and Disclosure at Time of Sale . The Original
Registration Statement became effective upon filing under Rule
462(e) of the 1933 Act Regulations (“Rule 462(e)”) on
July 31, 2008, and any post-effective amendment thereto also
became effective upon filing under Rule 462(e). No stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company,
are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied
with.
Neither the Company nor any person
acting on its behalf (within the meaning, for this paragraph only,
of Rule 163(c) of the 1933 Act Regulations) had made any offer that
is a written communication relating to the Securities prior to the
filing of the Original Registration Statement.
At the respective times the Original
Registration Statement and each amendment thereto became effective,
at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at each
Closing Time, the Registration Statement complied and will comply
in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations, and did not 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.
Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or
any such amendment or supplement was issued, and the Prospectus, as
amended or supplemented as of each Closing Time, included or will
include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
Each preliminary prospectus
(including the prospectus or prospectuses filed as part of the
Original Registration Statement or any amendment thereto) complied
when so filed in all
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material respects with the 1933 Act Regulations,
and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
As of the Applicable Time, neither
(x) the Issuer General Use Free Writing Prospectus(es) or the
Permitted Free Writing Prospectus(es) (each as defined below)
issued at or prior to the Applicable Time and the Statutory
Prospectus (as defined below), all considered together
(collectively, the “General Disclosure Package”), nor
(y) any individual Issuer Limited Use Free Writing Prospectus,
when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
As of the time of the filing of the
Final Term Sheet (as defined in Section 3(b)), the General
Disclosure Package, when considered together with the Final Term
Sheet will 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.
As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
8:35 a.m. (Eastern time) on April 28, 2009 or such other time
as agreed by the Company and the Representatives.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or
(iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the
offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors,
as evidenced by its being specified in Schedule B
hereto.
“Issuer Limited Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing
Prospectus.
“Statutory Prospectus”
as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that
time, including any document incorporated by reference therein and
any preliminary prospectus or other prospectus deemed to be a part
thereof.
Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Securities or until
any earlier date that
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the issuer notified or notifies the
Representatives as described in Section 3(e), did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to
be a part thereof that has not been superseded or
modified.
The representations and warranties
in this subsection shall not apply to statements in or omissions
from the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives expressly for use therein.
(iii) Incorporated Documents
. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
thereunder (the “1934 Act Regulations”), and, when read
together with the other information in the Prospectus, (a) at
the time the Original Registration Statement became effective,
(b) at the earlier of time the Prospectus was first used and
the date and time of the first contract of sale of Securities in
this offering and (c) at each Closing Time, did not 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.
(iv) Independent Accountants
. The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(v) Financial Statements .
The financial statements included in the Registration Statement,
the General Disclosure Package and the Prospectus, together with
the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles (“GAAP”) applied on a consistent
basis throughout the periods involved. The supporting schedules, if
any, present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the
summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
included in the Registration Statement. All disclosures contained
in the Registration Statement, the General Disclosure Package or
the Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the
Commission) comply with Regulation G under the 1934 Act and
Item 10 of Regulation S-K of the 1933 Act Regulations, to the
extent applicable.
(vi) No Material Adverse Change
in Business . Since the respective dates as of which
information is given in the Registration Statement, the General
Disclosure Package or the Prospectus, except as otherwise stated
therein, there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the results of operations
or business affairs of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business (a “Material Adverse Effect”).
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(vii) Regulatory Matters .
The Company is duly registered under the Bank Holding Company Act
of 1956; and each subsidiary of the Company which conducts business
as a bank is duly authorized to conduct such banking business in
each jurisdiction in which such banking business is
conducted;
(viii) Good Standing of the
Company . The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect.
(ix) Good Standing of Significant
Subsidiaries . Each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of Regulation S-X),
including The Northern Trust Company (each a “Significant
Subsidiary” and, collectively, the “Significant
Subsidiaries”) has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
such Significant Subsidiary has been duly authorized and validly
issued, is fully paid and, except as provided in 12 U.S.C.
Section 55, non assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. The
only subsidiaries of the Company are (a) the subsidiaries
listed on Schedule D hereto and (b) certain other subsidiaries
which, considered in the aggregate as a single subsidiary, do not
constitute a “significant subsidiary” as defined in
Rule 1-02 of Regulation S-X.
(x) Capitalization . The
authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus (except for subsequent issuances, if
any, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus and
repurchases pursuant to the Company’s stock purchase
program). The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non assessable.
(xi) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
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(xii) Authorization of the
Securities . The unissued Securities to be issued and sold by
the Company to the Underwriters hereunder have been duly and
validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and
fully paid and non-assessable and will conform to the description
of the Securities contained in the Prospectus.
(xiii) Absence of Defaults and
Conflicts . Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any
of its Significant Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any Significant Subsidiary is subject (collectively,
“Agreements and Instruments”) except for such defaults
that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption
“Use of Proceeds”) and compliance by the Company with
its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches, defaults or
Repayment Events or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result
in any violation of the provisions of the charter or by-laws of the
Company or any subsidiary or, except for such violations that would
not result in a Material Adverse Effect, any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or
any of their assets, properties or operations. As used herein, a
“Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
subsidiary.
(xiv) Absence of Proceedings
. There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary, (a) which is required to be disclosed in the
Registration Statement (other than as disclosed therein),
(b) which, except as disclosed in the Registration Statement,
is reasonably likely to result in a Material Adverse Effect, or
(c) which is reasonably likely to materially and adversely
affect the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations
hereunder.
(xv) Accuracy of Exhibits .
There are no contracts or documents that are required to be
described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and
filed.
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(xvi) Absence of Manipulation
. Neither the Company nor, to the knowledge of the Company, any
affiliate of the Company has taken, nor will the Company take or
cause any affiliate to take, directly or indirectly, any action
which is designed to or which has constituted or which would be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Securities.
(xvii) Absence of Further
Requirements . No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and except for filings to be
made under the 1934 Act and the 1934 Act Regulations.
(xviii) Possession of Licenses
and Permits . The Company and its Significant Subsidiaries
possess such permits, licenses, approvals, consents and other
authorizations (collectively, “Governmental Licenses”)
issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure so to possess would not,
singly or in the aggregate, result in a Material Adverse Effect;
the Company and its Significant Subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not, singly or in the aggregate, result in a Material
Adverse Effect; and neither the Company nor any of its Significant
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(xix) Investment Company Act
. The Company is not required, and upon the issuance and sale of
the Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be
required, to register as, an “investment company” under
the Investment Company Act of 1940, as amended (the “1940
Act”).
(xx) Accounting Controls and
Disclosure Controls . The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (1) transactions are
executed in accordance with management’s general or specific
authorization; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (3) access to
assets is permitted only in accordance with management’s
general or specific authorization; and (4) the amounts
recorded on the Company’s consolidated balance sheet for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
Except as described in the Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been
(I) no material weakness in the
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Company’s internal control over financial
reporting (whether or not remediated) and (II) no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting.
The Company and its consolidated
subsidiaries employ disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act
is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(xxi) Compliance with the
Sarbanes-Oxley Act . There is and has been no failure on the
part of the Company or any of the Company’s directors or
officers, in their capacities as such, to comply in all material
respects with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications.
(xxii) Pending Proceedings and
Examinations . The Registration Statement is not the subject of
a pending proceeding or examination under Section 8(d) or 8(e)
of the 1933 Act, and the Company is not the subject of a pending
proceeding under Section 8A of the 1933 Act in connection with
the offering of the Securities.
(b) Officer’s
Certificates . Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives
or to counsel for the Underwriters shall be deemed a representation
and warranty by the Company to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale and Delivery to
Underwriters; Closing .
(a) Securities . On the basis
of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, (i) the Company
agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase
from the Company, at a purchase price per share of $48.375, the
number of Firm Securities set forth opposite the name of such
Underwriter in Schedule A hereto and (ii) in the event and to
the extent that the Representatives on behalf of the Underwriters,
shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to issue and sell to each
Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at
the purchase price per share set forth in clause (i) of this
Section 2(a), that portion of the number of Optional
Securities as to which such election shall have been exercised (to
be adjusted by the Representatives so as to eliminate fractional
shares) determined by multiplying such number of Optional
Securities by a fraction, the numerator of which is the maximum
number of Optional Securities which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in
Schedule A hereto and the denominator of which is the maximum
number of Optional Securities that all of the Underwriters are
entitled to purchase hereunder.
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The Company hereby grants to the
Underwriters the right to purchase at their election up to
2,250,000 Optional Securities, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm Securities. Any
such election to purchase Optional Securities may be exercised only
once and only by written notice from the Representatives to the
Company, given within a period of thirty (30) calendar days
after the date of this Agreement, setting forth the aggregate
number of Optional Securities to be purchased and the date and time
on which such Optional Securities are to be delivered, as
reasonably determined by the Representatives but in no event
earlier than the First Closing Time (as defined in Section 4
hereof) or, unless the Representatives and the Company otherwise
agree in writing, earlier than two or later than ten business days
after the date of such notice.
(b) Payment . Payment of the
purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of McDermott
Will & Emery LLP, 227 West Monroe Street, Chicago,
Illinois 60606-5096, or at such other place as shall be agreed upon
by the Representatives and the Company, (i) with respect to
the Firm Securities, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on
any given day) business day after the date hereof (unless postponed
in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company and
(ii) with respect to the Optional Securities, 9:00 A.M.
(Eastern Time) on the date reasonably specified by the
Representatives in the written notice given by the Representatives
of the Underwriters’ election to purchase such Optional
Securities in accordance with Section 2(a) hereof, or such
other time and date as the Representatives and the Company may
agree upon in writing. Such time and date for delivery of the Firm
Securities is herein called the “First Closing Time”,
such time and date for delivery of the Optional Securities, if not
the First Closing Time, is herein called the “Second Closing
Time”, and each such time and date for delivery is herein
called a “Closing Time”.
Payment shall be made to the Company
by wire transfer of immediately available funds to a bank account
designated by the Company, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for
the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase
price for, the Securities which it has agreed to purchase. Each of
Goldman Sachs and Morgan Stanley, individually and not as
representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by
the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Denominations;
Registration . The Securities shall be in such denominations
and registered in such names as the Representatives may request in
writing at least one full business day before each Closing Time.
The Securities, which may be in temporary form, will be made
available for examination and packaging by the Representatives in
The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to each Closing Time.
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SECTION 3. Covenants of the
Company . The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities
Regulations and Commission Requests; Payment of Filing Fees .
The Company, subject to Section 3(b), will comply with the
requirements of Rule 430B and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement or new
registration statement relating to the Securities shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, regarding the Registration Statement
including any document incorporated by reference in the Prospectus,
(iii) of any request by the Commission for any amendment to
the Registration Statement or the filing of a new registration
statement or any amendment or supplement to the Prospectus or any
document incorporated by reference therein or otherwise deemed to
be a part thereof or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or such new
registration statement or of any order preventing or suspending the
use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant
to Section 8(e) of the 1933 Act concerning the Registration
Statement and (v) if the Company becomes the subject of a
proceeding under Section 8A of the 1933 Act in connection with
the offering of the Securities. The Company will effect the filings
required under Rule 424(b), in the manner and within the time
period required by Rule 424(b) (without reliance on Rule
424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission
and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment. The Company shall pay the required Commission filing fees
relating to the Securities within the time required by Rule
456(b)(1)(i) of the 1933 Act Regulations without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the 1933 Act Regulations (including, if applicable, by
updating the “Calculation of Registration Fee” table in
accordance with Rule 456(b)(1)(ii) either in a post-effective
amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b)).
(b) Filing of Amendments and
Exchange Act Documents; Preparation of Final Term Sheet . The
Company will give the Representatives notice of its intention to
file or prepare any amendment to the Registration Statement or new
registration statement relating to the Securities or any amendment,
supplement or revision to either any preliminary prospectus
(including any prospectus included in the Original Registration
Statement or amendment thereto at the time it became effective) or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, and the Company will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file
or use any such document to which the Representatives or counsel
for the Underwriters shall reasonably object. The Company has given
the Representatives notice of any filings made pursuant to the 1934
Act or 1934 Act Regulations within 48 hours prior to the Applicable
Time; the Company will give the Representatives notice of its
intention to make any such filing during the period from the
Applicable Time to each Closing Time and will furnish
the
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Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing
and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably
object.
(c) Delivery of Registration
Statements . The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge,
copies of the signed Original Registration Statement and of each
amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein or otherwise deemed
to be a part thereof) and copies of all signed consents and
certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Original
Registration Statement and of each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Original
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses
. The Company has delivered to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter
reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company
will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with
Securities Laws . The Company will comply with the 1933 Act and
the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the
Prospectus. The Company will, during the period when the Prospectus
is required be delivered under the 1933 Act, file all documents
required to be filed with the Commission pursuant to the 1934 Act
within the time period required by the 1934 Act and the 1934 Act
Regulations. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall
be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or to file a new registration
statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment, supplement or new
registration statement as may be necessary to correct such
statement or omission or to comply with such requirements, the
Company will use its best efforts to have such amendment or new
registration statement declared effective as soon as practicable
(if it is not an automatic shelf registration statement with
respect to the Securities) and the Company will furnish to
the
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Underwriters such number of copies of such
amendment, supplement or new registration statement as the
Underwriters may reasonably request. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement (or any other
registration statement relating to the Securities) or the Statutory
Prospectus or any preliminary prospectus or included or would
include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at
that subsequent time, not misleading, the Company will promptly
notify the Representatives and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or
omission.
(f) Blue Sky Qualifications .
The Company will use commercially reasonable efforts, in
cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such
states and other jurisdictions as the Representatives may designate
and to maintain such qualifications in effect for a period of not
less than one year from the date hereof; provided, however, that
the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject. The Company will also supply the Underwriters with such
information as is necessary for the determination of the legality
of the Securities for investment under the laws of such
jurisdictions as the Underwriters may request.
(g) Listing . The Company
shall use its best efforts to list for quotation the Securities on
the Nasdaq Stock Market, Inc.’s Global Select Market
(“NASDAQ”).
(h) Rule 158 . The Company
will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for
the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(i) Use of Proceeds . The
Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under
“Use of Proceeds.”
(j) Restriction on Sale of
Securities . During a period of ninety (90) days from the
date of the Prospectus, the Company will not, without the prior
written consent of the Representatives, directly or indirectly,
issue, sell, offer or contract to sell, grant any option for the
sale of, or otherwise transfer or dis
