Exhibit 1.1
EXECUTION COPY
STATE STREET
CORPORATION
51,282,051 Shares
Common Stock
UNDERWRITING
AGREEMENT
May 18, 2009
Goldman, Sachs &
Co.
Morgan Stanley & Co.
Incorporated,
As
Representatives of the Several Underwriters
named
in Schedule I hereto
c/o Goldman, Sachs &
Co.
85 Broad Street
New York, New York 10004
and
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
1. Introductory . State
Street Corporation, a Massachusetts corporation (the “
Company ”), agrees with the several Underwriters
listed in Schedule I hereto (the “ Underwriters
”), for whom Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated are acting as representatives
(the “ Representatives ”), to issue and sell to
the several Underwriters 51,282,051 shares (the “ Firm
Shares ”) of its common stock, par value $1.00 per share
(the “ Common Stock ”), and, at the election of
the Underwriters, up to 7,692,307 additional shares of Common Stock
(the “ Optional Shares ” and together with the
Firm Shares, the “ Shares ”). The Shares are
described in the Final Prospectus which is referred to below.
Capitalized terms used herein and not otherwise defined, but that
are defined in the Statutory Prospectus (as defined in
Section 2(a)), have the meaning specified in the Statutory
Prospectus.
2. Representations and Warranties
of the Company . The Company represents and warrants to, and
agrees with, the several Underwriters that:
(a) Filing and Effectiveness of
Registration Statement; Certain Defined Terms . The Company has
filed with the Commission an automatic shelf registration statement
as defined under Rule 405 of the Act (as defined below) on
Form S-3 (No. 333-157882) on March 12, 2009, including a
related prospectus or prospectuses, covering the registration of
the Common Stock under the Act, which became effective upon filing.
The “ Registration Statement ” at any particular
time means such registration statement in the form then filed with
the Commission, including any amendment thereto, any document
incorporated by reference therein and all 430B Information and all
430C Information with respect to such registration statement, that
in any case has not been then superseded or modified. The “
Registration Statement ” without reference to a time
means the Registration Statement as of the Effective Time. For
purposes of this definition, 430B Information shall be considered
to be included in the Registration Statement as of the time
specified in Rule 430B.
For purposes of this
Agreement:
“ 430B Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule 430B(e) or
retroactively deemed to be a part of the Registration Statement
pursuant to Rule 430B(f).
“ 430C Information
” means, with respect to any registration statement,
information included in a prospectus then deemed to be a part of
the Registration Statement pursuant to Rule 430C.
“ Act ” means the
Securities Act of 1933, as amended.
“
Applicable Time ” means 6:00 p.m. (Eastern Standard
Time) on the date of this Agreement.
“ Closing Date ”
has the meaning defined in Section 3 hereof.
“ Commission ”
means the United States Securities and Exchange
Commission.
“ Effective Time
” of the Registration Statement relating to the Shares means
the time of the first contract of sale for the Shares.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Final Prospectus
” means the Statutory Prospectus that discloses the public
offering price, other 430B Information and other final terms of the
Shares and otherwise satisfies Section 10(a) of the
Act.
“ General Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule
II to this Agreement.
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“ Issuer Free Writing
Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Shares 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).
“ Limited
Use Issuer Free Writing Prospectus ” means any Issuer
Free Writing Prospectus that is not a General Use Issuer Free
Writing Prospectus.
“ Rules and Regulations
” means the rules and regulations of the
Commission.
“ Statutory Prospectus
” means, with respect to a particular time, the prospectus
relating to the Shares that is included in the Registration
Statement immediately prior to that time, including any
430B Information or 430C Information with respect to such
Registration Statement. For purposes of the foregoing definition,
430B Information shall be considered to be included in the
Statutory Prospectus only as of the actual time that form of
prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) and not
retroactively.
As used herein, “ business
day ” shall mean a day on which the New York Stock
Exchange (“ NYSE ”) is open for
trading.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) Compliance. The documents
incorporated by reference in the General Disclosure Package (as
hereinafter defined) and the Final Prospectus, when they became
effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the Rules and Regulations,
and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Final Prospectus or any further amendment or
supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the Rules and Regulations 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, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such
in Section 8(b) hereof.
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(c) Securities Act
Requirements . (i) (A) At the time the Registration
Statement initially became effective, (B) at the time of each
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), (C) at the
Effective Time relating to the Shares and (D) on each Closing
Date, the Registration Statement (other than Form T-1 filings
filed as exhibits thereto) conformed and will conform in all
material respects to the requirements of the Act and the Rules and
Regulations and did not and will not include 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 (ii) (A) on its date, (B) at the time of
filing the Final Prospectus pursuant to Rule 424(b) and
(C) on each Closing Date, the Final Prospectus will conform in
all material respects to the requirements of the Act and the Rules
and Regulations, and will not include 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, in
light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in
or omissions from any such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being
understood and agreed that the only such information is that
described as such in Section 8(b) hereof.
(d) Automatic Shelf Registration
Statement . (i) Well-Known Seasoned Issuer Status
. (A) At the time of initial filing of the Registration
Statement, and (B) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of
the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the Exchange Act or form of prospectus), the Company was a
“well known seasoned issuer” as defined in Rule 405,
including not having been an “ineligible issuer” as
defined in Rule 405.
(ii) Effectiveness of Automatic
Shelf Registration Statement . The Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405, that initially became effective within three years of the
date of this Agreement.
(iii) Eligibility to Use
Automatic Shelf Registration Form . The Company has not
received from the Commission any notice pursuant to Rule 401(g)(2)
objecting to use of the automatic shelf registration statement
form. If at any time and so long as delivery of a prospectus by an
Underwriter or dealer may be (or but for the exception in Rule 172
would be) required under the Act, the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases
to be eligible to use the automatic shelf registration statement
form, the Company will (i) promptly notify the
Representatives, (ii) promptly file a new registration
statement or post-effective amendment on the proper form relating
to
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the Shares, in a form satisfactory
to the Representatives, (iii) use its best efforts to cause
such registration statement or post-effective amendment to be
declared effective as soon as practicable, and (iv) promptly
notify the Representatives of such effectiveness. The Company will
take all other action necessary or appropriate to permit the public
offering and sale of the Shares to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2)
notice or for which the Company has otherwise become ineligible.
References herein to the Registration Statement shall include such
new registration statement or post-effective amendment, as the case
may be.
(iv) Filing Fees . The
Company has paid or shall pay the required Commission filing fees
relating to the Shares within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) under the Act.
(e) Ineligible Issuer Status
. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Shares and (ii) at the date of this
Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405.
(f) General Disclosure
Package . As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time, the preliminary prospectus supplement,
dated May 18, 2009, including the base prospectus, dated
March 12, 2009 (which is the most recent Statutory Prospectus
distributed to investors generally), and the other information, if
any, stated in Schedule II to this Agreement to be included
in the General Disclosure Package, all considered together
(collectively, the “ General Disclosure Package
”), nor (ii) any individual Limited Use Issuer 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. The preceding sentence
does not apply to statements in or omissions from the General
Disclosure Package or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of
the information described as such in Section 8(b)
hereof.
(g) Issuer Free Writing
Prospectuses . No Issuer Free Writing Prospectus includes any
information that conflicts with the information contained in the
Registration Statement. If, at any time prior to or as of each
Closing Date and 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 then contained in the
Registration Statement or as a result
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of which such Issuer Free Writing
Prospectus, if republished immediately following such event or
development, 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 under which they were made, not misleading,
(i) the Company has promptly notified or will promptly notify
the Representatives and (ii) the Company has promptly amended
or will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission.
(h) No Material Change in
Business . Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the General Disclosure
Package any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the General Disclosure Package; and, since the most
recent applicable dates as of which information is given in the
General Disclosure Package, there has not been any change in the
capital stock or long-term debt (other than (i) issuances of
capital stock upon exercise of options and stock appreciation
rights issued under equity incentive or stock option plans reported
on the Company’s Proxy Statement filed with the Commission on
April 6, 2009 and on the Company’s Annual Report on Form
10-K for the year ended December 31, 2008, (ii) upon
earn-outs of performance shares, (iii) upon repayment of
long-term debt in accordance with its terms, (iv) upon
conversions of convertible securities, and (v) issuances of
capital stock under deferred stock compensation plans, restricted
stock programs and saving-related purchase plans, in the case of
(i) through (v) above, which were outstanding on the date
of the latest balance sheet included or incorporated by reference
into the General Disclosure Package, and (vi) repurchases of
the Company’s Common Stock in accordance with the
Company’s stock repurchase program authorized by its Board of
Directors) of the Company or any of its subsidiaries or any
material adverse change in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries taken as
a whole (“ Material Adverse Effect ”), or any
development involving a prospective Material Adverse Effect,
otherwise than as set forth or contemplated in the General
Disclosure Package.
(i) Good Standing . Each of
the Company and State Street Bank and Trust Company (the “
Bank ”) has been duly incorporated and is validly
existing as a corporation or trust company in good standing under
the laws of the jurisdiction of its incorporation, with corporate
and chartered trust power and authority, as the case may be, to own
its properties and conduct its business as described in the General
Disclosure Package and has been duly qualified as a foreign
corporation or trust company
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for the transaction of business and
is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as
to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified
in any such jurisdiction.
(j) Capitalization . The
Company has an authorized capitalization as set forth in the
General Disclosure Package, and the Shares and all other
outstanding shares of capital stock of the Company have been duly
authorized and are, or (in the case of the Shares) on each Closing
Date will be, validly issued and fully paid and nonassessable and
conform in all material respects to the description thereof
contained in the General Disclosure Package and the Final
Prospectus. Except as set forth in the Registration Statement, the
Statutory Prospectus and the Final Prospectus, (i) no person
has the right, contractual or otherwise, to cause the Company to
issue or sell to it any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company,
(ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of
Common Stock or shares of any other capital stock or other equity
interests of the Company, (iii) no person has the right to act
as a financial advisor to the Company in connection with the offer
and sale of the Shares, and (iv) no person has the right,
contractual or otherwise, to cause the Company to register under
the Act any shares of Common Stock or shares of any other capital
stock or other equity interests of the Company, or to include any
such shares or interests in the Registration Statement or the
offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise. Except as set forth in
the General Disclosure Package or Final Prospectus, no person has
the right to act as an underwriter to the Company in connection
with the offer and sale of the Shares.
(k) Absence of Defaults and
Conflicts Resulting from the Transactions . The (i) issue
and sale of the Shares by the Company, (ii) the execution,
delivery and performance of this Agreement by the Company, and
(iii) compliance with the provisions hereof and the
consummation of the transactions herein contemplated by the Company
will not conflict with or result in any breach or violation of any
of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any security interest,
lien, charge or encumbrance upon any property or assets of the
Company or its subsidiaries pursuant to, any material indenture,
mortgage, deed of trust, loan agreement, contract or other
agreement or instrument to which the Company or the Bank is a party
or by which the Company or the Bank is bound or to which any of the
property or assets of the Company or the Bank is subject (except as
would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the organizational
documents (including Articles of Organization or By-laws) of the
Company or the Bank or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over the Company or the Bank or any of their properties; and
no
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consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the execution, delivery
and performance by the Company of this Agreement or in connection
with the consummation of the transactions contemplated by this
Agreement, except such as have been, or will have been prior to
each Closing Date, obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters.
(l) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(m) Absence of Existing Defaults
and Conflicts . Neither the Company nor the Bank is in
violation of its organizational documents (including Articles of
Organization or By-laws) or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, which,
individually or in the aggregate, would reasonably be expected to
result in a Material Adverse Effect.
(n) Accurate Disclosure . The
statements set forth in the General Disclosure Package and the
Final Prospectus under the captions “Certain U.S. Federal Tax
Consequences to Non-U.S. Holders” and “Certain ERISA
Considerations,” insofar as they purport to constitute a
summary of matters of U.S. federal income tax law or the U.S.
Employee Retirement Income Security Act of 1974 and regulations or
legal conclusions with respect thereto, are accurate, complete and
fair in all material respects.
(o) Litigation . Other than
as set forth in the General Disclosure Package, there are no
pending or, to the Company’s knowledge, threatened or
contemplated legal or government actions, suits or proceedings to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the
subject, which, taking into account the likelihood of the outcome,
the damages or other relief sought and other relevant factors,
individually or in the aggregate, would reasonably be expected to
result in a Material Adverse Effect.
(p) Investment Company Act .
The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an “investment company”
or an entity “controlled” by an “investment
company”, as such terms are defined in the Investment Company
Act of 1940, as amended (the “ Investment Company Act
”).
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(q) Independence of
Accountants . Ernst & Young, LLP, who have certified
certain financial statements of the Company and its subsidiaries,
are independent registered public accountants as required by the
Act and the Rules and Regulations.
(r) Bank Holding Company .
The Company is a bank holding company registered under the Bank
Holding Company Act of 1956, as amended; and the Company and the
Bank are in compliance with, and conduct their respective
businesses in conformity with, all applicable laws and governmental
regulations governing bank holding companies, banks and
subsidiaries of bank holding companies, respectively, except
failures to so comply or be in conformity that could not reasonably
be expected to result in a Material Adverse Effect.
(s) Internal
Controls and Compliance with the Sarbanes-Oxley Act . Except as
set forth in the General Disclosure Package, the Company, the Bank
and the Company’s Board of Directors (the “
Board ”) are in material compliance with the
Sarbanes-Oxley Act of 2002 (“ Sarbanes-Oxley ”)
and all applicable Exchange Act rules. The Company maintains a
system of internal controls, including, but not limited to,
disclosure controls and procedures, internal controls over
accounting matters and financial reporting and legal and regulatory
compliance controls (collectively, “ Internal Controls
”) that comply with Sarbanes-Oxley and the Exchange Act and
are sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with
management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S.
Generally Accepted Accounting Principles and to maintain
accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Internal Controls are overseen by the Examining and Audit Committee
(the “ Audit Committee ”) of the Board in
accordance with Exchange Rules. The Company has not publicly
disclosed or reported to the Audit Committee or the Board, and
within the next 90 days the Company does not reasonably expect to
publicly disclose or report to the Audit Committee or the Board, a
significant deficiency, material weakness, change in Internal
Controls or fraud involving management or other employees who have
a significant role in Internal Controls (each, an “
Internal Control Event ”), any violation of, or
failure to comply with, Sarbanes-Oxley or the Exchange Act, or any
matter which, if determined adversely, would result in a Material
Adverse Effect.
(t) Lock-up Agreement . The
Company has obtained for the benefit of the Underwriters the
agreement (a “ Lock-up Agreement ”), in the form
set forth in Schedule IV hereto, of each of its directors
and “officers” (within the meaning of
Rule 16a-1(f) under the Exchange Act), except for those
directors listed on Schedule V hereto.
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(u) NYSE Listing . The
Company has not received any notice from the NYSE regarding the
pending or threatened delisting of its Common Stock from the
NYSE.
(v) Anti-Bribery Laws. Each
of the Company and the Bank, and, to the knowledge of the Company
and the Bank, any of their respective officers, directors, agents,
or employees, has not since December 31, 2003 materially
violated, its participation in the offering will not materially
violate, and it has instituted and maintains policies and/or
procedures designed to ensure continued compliance with each of the
following laws, to the extent applicable to and binding upon the
Company’s and the Bank’s respective operations:
anti-bribery laws, including but not limited to, any law, rule, or
regulation of any locality, including but not limited to any law,
rule, or regulation promulgated to implement the OECD Convention on
Combating Bribery of Foreign Public Officials in International
Business Transactions, signed December 17, 1997, including the
U.S. Foreign Corrupt Practices Act of 1977, as amended, or any
other law, rule or regulation of similar purpose and
scope.
(w) Anti-Money Laundering and
Sanctions. Each of the Company and the Bank has implemented a
risk-based anti-money laundering and sanctions compliance program
consistent with applicable requirements of the Bank Secrecy Act
Examination Manual and applicable law, including but not limited to
the USA PATRIOT Act, the Bank Secrecy Act and the laws, regulations
and Executive Orders administered by the U.S. Department of the
Treasury, Office of Foreign Assets Control, to the extent
applicable to and binding upon the Company’s and the
Bank’s respective operations.
3. Purchase, Sale and Delivery of
the Shares . On the basis of the representations, warranties
and agreements and subject to the terms and conditions set forth
herein, (a) the Company agrees to sell to the several
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule
I hereto at a purchase price of $37.83 per share and
(b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares as provided
below, the Company agrees to sell to the several Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share set
forth in this Section 3, that portion of the number of
Optional Shares as to which such election shall have been exercised
(to be adjusted so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Securities
that all of the Underwriters are entitled to purchase
hereunder.
The Company will deliver the Firm
Shares to or as instructed by the Representatives for the accounts
of the several Underwriters in a form reasonably acceptable to the
Representatives against payment of the purchase price by the
Underwriters in Federal (same
10
day) funds by wire transfer to an account at a
bank acceptable to the Representatives drawn to the order of the
Company at the office of Cravath, Swaine & Moore LLP, at
9:00 a.m., New York time, on May 22, 2009, or at such other
time not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein
referred to as the “ First Closing Date ”. The
time and date for the payment and delivery of the Optional Shares,
if not the First Closing Date, shall be made in the same manner and
at the same office as the payment for the Firm Shares and is herein
called the “ Second Closing Date ”, and each
such time and date for delivery is herein called a “
Closing Date ”. For purposes of Rule 15c6-1 under
the Exchange Act, the Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Shares sold
pursuant to the offering. The Shares to be delivered or evidence of
their issuance will be made available for checking at the office of
the Depository Trust Company (“ DTC ”) or its
designated custodian at least 24 hours prior to each Closing
Date.
4. Offering by Underwriters .
It is understood that the several Underwriters propose to offer the
Shares for sale to the public as set forth in the Final
Prospectus.
5. Certain Agreements of the
Company . The Company agrees with the several Underwriters
that:
(a) Filing of Prospectuses .
The Company has filed or will file each Statutory Prospectus
(including the Final Prospectus) pursuant to and in accordance with
Rule 424(b) not later than the second business day following
the earlier of the date it is first used or the execution and
delivery of this Agreement. The Company has complied and will
comply with Rule 433.
(b) Filing of Amendments;
Response to Commission Requests . For so long as a prospectus
relating to the Shares is (or but for the exemption in
Rule 172 would be) required to be delivered under the Act by
any Underwriter or dealer, the Company will promptly advise the
Representatives of any proposal to amend or supplement the
Registration Statement or any Statutory Prospectus at any time and
will offer the Representatives a reasonable opportunity to comment
on any such amendment or supplement; and the Company will also
advise the Representatives promptly of (i) the filing of any
such amendment or supplement, (ii) any request by the
Commission or its staff for any amendment to the Registration
Statement, for any supplement to any Statutory Prospectus or for
any additional information, (iii) the institution by the
Commission of any stop order proceedings in respect of the
Registration Statement or the threatening of any proceeding for
that purpose, and (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Shares in any jurisdiction or the institution or threatening of
any proceedings for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
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(c) Continued Compliance with
Securities Laws . If, at any time when a prospectus relating to
the Shares is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act by any Underwri
