Exhibit 1.6
THE CHARLES SCHWAB
CORPORATION
4.950% Senior Notes due
2014
UNDERWRITING AGREEMENT
J UNE 2, 2009
UNDERWRITING AGREEMENT
June 2, 2009
J.P. Morgan Securities
Inc.
UBS Securities LLC
as Representatives of the
several Underwriters
named
in Schedule A hereto
c/o J.P. Morgan Securities
Inc.
270 Park Avenue
New York, NY 10017
c/o UBS Securities LLC
677 Washington Boulevard
Stamford, CT 06901
Ladies and Gentlemen:
The Charles Schwab Corporation, a
Delaware corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the several underwriters named in Schedule
A hereto (the “ Underwriters ”), for whom
you are acting as Representatives, $750,000,000 aggregate principal
amount of its 4.950% Senior Notes due 2014 (the “
Securities ”). The Securities are described in the
Prospectus that is referred to below.
The Securities are to be issued by
the Company pursuant to the provisions of the Senior Indenture (the
“Base Indenture”) to be dated as of the Closing Date
(as defined below) as amended and supplemented by a first
supplemental indenture, to be dated as of the Closing Date (the
“ First Supplemental Indenture ”, and together
with the Base Indenture, the “ Indenture ”),
between the Company and The Bank of New York Mellon Trust Company,
N.A., as trustee (the “ Trustee ”).
The Company has prepared and filed
in respect of the Securities, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the “
Act ”), with the Securities and Exchange Commission
(the “ Commission ”) an automatic shelf
registration statement on Form S-3 (File No. 333-156152) under
the Act (the “ registration statement ”),
including a prospectus, which registration statement incorporates
by reference documents which the Company has filed, or will file,
in accordance with the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder
(collectively, the “ Exchange Act ”). Such
registration statement has become effective under the
Act.
Except where the context otherwise
requires, “ Registration Statement ,” as used
herein, means the registration statement, as amended at the time of
such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the
respective
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Underwriters (the “ Effective Time
”), including (i) all documents filed as a part thereof
or incorporated or deemed to be incorporated by reference therein,
(ii) any information contained or incorporated by reference in
a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant
to Rule 430B or Rule 430C under the Act, to be part of the
registration statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of
Securities pursuant to Rule 462(b) under the Act.
The Company has furnished or made
available to you, for use by the Underwriters and by dealers in
connection with the offering of the Securities, copies of one or
more preliminary prospectus supplements, and the documents
incorporated by reference therein, relating to the Securities.
Except where the context otherwise requires, “ Pre-Pricing
Prospectus ,” as used herein, means each such preliminary
prospectus supplement, in the form so furnished, including any
basic prospectus (whether or not in preliminary form) furnished to
you by the Company and attached to or used with such preliminary
prospectus supplement. Except where the context otherwise requires,
“ Basic Prospectus ,” as used herein, means any
such basic prospectus attached to or used with the Prospectus
Supplement (as defined below).
Except where the context otherwise
requires, “ Prospectus Supplement ,” as used
herein, means the final prospectus supplement, relating to the
Securities, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day
after the date hereof (or such earlier time as may be required
under the Act), in the form furnished by the Company to you for use
by the Underwriters and by dealers in connection with the offering
of the Securities.
Except where the context otherwise
requires, “ Prospectus ,” as used herein, means
the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“ Issuer Free Writing
Prospectus ,” as used herein, means a “free writing
prospectus” (as defined in Rule 405 under the Act) prepared
by or on behalf of, or used or referred to by, the Company in
connection with the offering of the Securities.
“ Permitted Free Writing
Prospectuses ,” as used herein, means the documents
listed on Schedule B attached hereto and each “road
show” (as defined in Rule 433 under the Act), if any, related
to the offering of the Securities contemplated hereby that is a
“written communication” (as defined in Rule 405 under
the Act). Each Underwriter severally covenants and agrees with the
Company that such Underwriter has not offered or sold and will not
offer or sell, without the Company’s consent, any Securities
by means of any “free writing prospectus” (as defined
in Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under the
Act, other than a Permitted Free Writing Prospectus.
“ Disclosure Package
,” as used herein, means any Pre-Pricing Prospectus together
with any combination of one or more of the Permitted Free Writing
Prospectuses, if any, as of the Applicable Time.
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“ Applicable Time
” means 4:52 p.m., New York City time, on the date of this
Agreement.
Any reference herein to the
Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (the “
Incorporated Documents ”), including, unless the
context otherwise requires, the documents, if any, filed as
exhibits to such Incorporated Documents. Any reference herein to
the terms “ amend ”, “ amendment
” or “ supplement ” with respect to the
Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act on or
after the initial effective date of the Registration Statement, or
the date of such Basic Prospectus, such Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
As used in this Agreement, “
business day ” shall mean any day other than a day on
which banks are permitted or required to be closed in New York
City. The terms “herein”, “hereof”,
“hereto”, “hereinafter” and similar terms,
as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term
“or,” as used herein, is not exclusive.
The Company and the Underwriters
agree as follows:
1. Sale and Purchase . Upon
the basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Company agrees to issue
and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from
the Company the respective principal amount of Securities set forth
opposite the name of such Underwriter in Schedule A attached
hereto, subject to adjustment in accordance with Section 8
hereof, in each case at a purchase price equal to $989.71 per
Security.
The Company is advised by you that
the Underwriters intend (i) to make a public offering of their
respective portions of the Securities as soon after the
effectiveness of this Agreement as in your judgment is advisable
and (ii) initially to offer the Securities upon the terms set
forth in the Prospectus. You may from time to time increase or
decrease the public offering price after the initial public
offering to such extent as you may determine.
2. Payment and Delivery .
Payment of the purchase price for the Securities shall be made to
the Company by Federal Funds wire transfer against delivery of the
Securities to you through the facilities of The Depository Trust
Company (“ DTC ”) for the respective accounts of
the Underwriters. Such payment and delivery shall be made at 10:00
a.m., New York City time, on June 5, 2009 (such time being
referred to herein as the “ Time of Purchase ”,
and such date being referred to herein as the “ Closing
Date ”) (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the
provisions of Section 8 hereof). Electronic transfer of the
Securities shall be made to you at the Time of Purchase in such
names and in such denominations as you shall specify.
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Deliveries of the documents
described in Section 6 hereof with respect to the purchase of
the Securities shall be made at the offices of Simpson
Thacher & Bartlett LLP at 425 Lexington Avenue, New York,
New York, 10017, at 9:00 a.m., New York City time, on the date of
closing of the purchase of the Securities.
3. Representations and Warranties
of the Company The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) the Registration Statement is an
“automatic shelf registration statement” as defined
under Rule 405 of the Act that has been filed with the Commission
not earlier than three years prior to the date hereof; and no
notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company; no stop order of the Commission preventing
or suspending the use of any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for
such purpose have been instituted or, to the Company’s
knowledge, are threatened by the Commission;
(b) the Registration Statement
complied when it became effective, complies as of the date hereof
and, as amended or supplemented, at the Time of Purchase, and at
all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Securities, will comply, in all material respects, with the
requirements of the Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “ Trust Indenture Act ”); the
conditions to the use of Form S-3 in connection with the offering
and sale of the Securities as contemplated hereby have been
satisfied; the Registration Statement meets, and the offering and
sale of the Securities as contemplated hereby complies with, the
requirements of Rule 415 under the Act; the Registration Statement
did not, as of the Effective Time, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; each Pre-Pricing Prospectus complied, at the time it
was filed with the Commission, and complies as of the date hereof,
in all material respects with the requirements of the Act; at no
time during the period that begins on the earlier of the date of
such Pre-Pricing Prospectus and the date such Pre-Pricing
Prospectus was filed with the Commission and ends at the Time of
Purchase did or will any Pre-Pricing Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or
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, and at the Applicable Time, the
Disclosure Package did not include an untrue statement of a
material fact or 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 Basic Prospectus
complied, as of its date, complies as of the date hereof and, at
the Time of Purchase and
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at all times during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Securities, will
comply, in all material respects, with the requirements of the Act;
at no time during the period that begins on the date of such Basic
Prospectus and ends at the Time of Purchase did or will any Basic
Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or 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
of the Prospectus Supplement and the Prospectus will comply, as of
the date that it is filed with the Commission, the date of the
Prospectus Supplement, the Time of Purchase and at all times during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Securities, in all
material respects, with the requirements of the Act (in the case of
the Prospectus, including, without limitation, Section 10(a)
of the Act); at no time during the period that begins on the
earlier of the date of the Prospectus Supplement and the date the
Prospectus Supplement is filed with the Commission and ends at the
later of the Time of Purchase and the end of the period during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Securities did or will
any Prospectus Supplement or the Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or
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; at no time prior to the Time of
Purchase did or will any Permitted Free Writing Prospectus include
an untrue statement of a material fact or 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; provided , however , that the Company
makes no representation or warranty in this Section 3(b) with
respect to any statement contained in the Registration Statement,
any Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus in reliance upon and in conformity with
information concerning an Underwriter and furnished in writing by
or on behalf of such Underwriter through you to the Company
expressly for use in the Registration Statement, such Pre-Pricing
Prospectus, the Prospectus or such Permitted Free Writing
Prospectus; each Incorporated Document, at the time such document
was filed with the Commission or at the time such document became
effective, as applicable, complied, in all material respects, with
the requirements of the Exchange Act and did not include an untrue
statement of a material fact or 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;
(c) prior to the execution of this
Agreement, the Company has not, directly or indirectly, offered or
sold any Securities by means of any “prospectus”
(within the meaning of the Act) or used any
“prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Securities, in each case
other than the Pre-Pricing Prospectuses and the Permitted Free
Writing Prospectuses, if any; the Company has not, directly or
indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in compliance with Rule 163 or with Rules
164 and 433 under the Act; assuming
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that such Permitted Free Writing
Prospectus is so sent or given after the Registration Statement was
filed with the Commission (and after such Permitted Free Writing
Prospectus was, if required pursuant to Rule 433(d) under the Act,
filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy
the provisions of Rule 164 and Rule 433 (without reliance on
subsections (b), (c) and (d) of Rule 164); the conditions
set forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Act are satisfied, and the
registration statement relating to the offering of the Securities
contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433 or
Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the
Underwriters are disqualified, by reason of subsection (f) or
(g) of Rule 164 under the Act, from using, in connection with
the offer and sale of the Securities, “free writing
prospectuses” (as defined in Rule 405 under the Act) pursuant
to Rules 164 and 433 under the Act; the Company is not an
ineligible issuer and is a well-known seasoned issuer, in each case
as defined under the Act, in each case at the times specified in
the Act in connection with the offering of the Securities; the
parties hereto agree and understand that the content of any and all
“road shows” (as defined in Rule 433 under the Act)
related to the offering of the Securities contemplated hereby is
solely the property of the Company;
(d) the Company has an authorized
capitalization as set forth in the Pre-Pricing Prospectus and the
Prospectus and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable, have been issued in compliance with all
applicable securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar
right;
(e) the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, to
execute and deliver this Agreement;
(f) the Company is qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a material adverse
effect on (i) the condition (financial or other), business,
properties, results of operations of the Company and its
subsidiaries taken as a whole or, (ii) the consummation of any
of the transactions contemplated hereby (a “ Material
Adverse Effect ”);
(g) the Company owns directly or
indirectly all of the issued and outstanding capital stock of each
of Charles Schwab Bank, Charles Schwab Investment Management, Inc.,
Charles Schwab & Co., Inc., and Schwab Holdings, Inc. (the
“Significant Subsidiaries”); complete and correct
copies of the charters and the bylaws of
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the Company and each Significant
Subsidiary and all amendments thereto have been delivered or made
available to you, and no changes therein will be made on or after
the date hereof through and including the Time of Purchase; each
Significant Subsidiary has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of
its organization, with full power and authority to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any;
each Significant Subsidiary is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction
where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure
to be so qualified and in good standing would not, individually or
in the aggregate, have a Material Adverse Effect; all of the
outstanding shares of capital stock of each of the Significant
Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable, have been issued in compliance with
all applicable securities laws, were not issued in violation of any
preemptive right, resale right, right of first refusal or similar
right and are owned by the Company subject to no security interest,
other encumbrance; no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights
to convert any obligation into shares of capital stock or ownership
interests in the Significant Subsidiaries are outstanding; and the
Company has no “significant subsidiary,” as that term
is defined in Rule 1-02(w) of Regulation S-X under the Act, other
than the Significant Subsidiaries;
(h) this Agreement has been duly
authorized, executed and delivered by the Company;
(i) the Indenture has been duly
authorized by the Company and when validly executed and delivered
by the Company and the Trustee will constitute a valid and legally
binding obligation of the Company, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general applicability
relating to or affecting creditors’ rights and to general
equity principles, regardless of whether enforceability is
considered in a proceeding in equity or at law (collectively, the
“Enforceability Exceptions”); the Indenture has been
duly qualified under the Trust Indenture Act;
(j) the Securities have been duly
authorized by the Company and, when duly executed, authenticated by
the Trustee and delivered as provided in the Indenture and paid for
as provided herein, will be duly and validly issued and will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of
the Indenture;
(k) the Indenture (including the
form of Securities), which will be in substantially the form filed
as an exhibit to the Registration Statement, will conform to the
descriptions thereof in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any;
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(l) none of the Company or any of
the Significant Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse
of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness
(or a person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (A) its charter or bylaws,
(B) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound or
affected, (C) any federal, state, local or foreign law,
regulation or rule, (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations
of The NASDAQ Global Market (“NASDAQ”) and the
Financial Industry Regulatory Authority (“ FINRA
”), or (E) any decree, judgment or order applicable to
it or any of its properties (other than in the case of (A), except
for breaches, violations or defaults which would not, individually
or in the aggregate, have a Material Adverse Effect);
(m) the execution, delivery and
performance of this Agreement and the Indenture and the issuance
and sale of the Securities and compliance by the Company with all
the provisions hereof and thereof and the consummation by the
Company of the transactions contemplated hereby and thereby will
not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which, with
notice, lapse of time or both, would result in any breach or
violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (or result in the creation or
imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Significant Subsidiary pursuant to)
(A) the charter or bylaws of the Company or any of the
Significant Subsidiaries, (B) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Significant
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, (C) any
federal, state, local or foreign law, regulation or rule,
(D) any rule or regulation of any self-regulatory organization
or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of NASDAQ), or (E) any
decree, judgment or order applicable to the Company or any of the
Significant Subsidiaries or any of their respective properties
(other than in the case of (A), except for conflicts, breaches,
violations or defaults which would not, individually or in the
aggregate, have a Material Adverse Effect);
(n) The Company is duly registered
as a savings and loan holding company subject to supervision and
regulation by the Office of Thrift Supervision
(“OTS”);
(o) The Company and each of its
subsidiaries are in compliance with all laws administered by the
OTS, the Federal Deposit Insurance Corporation (“ FDIC
”) and any other federal or state bank regulatory authorities
(together with the OTS and the FDIC, the “ Bank Regulatory
Authorities ”) with jurisdiction over the Company or any
of the Significant Subsidiaries, except for failures to be so in
compliance that would not individually or in the aggregate have a
Material Adverse Effect;
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(p) there are no written agreements
or other written statements as described under 12 U.S.C. 1818(u)
between any federal banking agency and the Company or any of its
Significant Subsidiaries (whether or not such federal banking
agency has determined that publication would be contrary to the
public interest) and except as disclosed to the Underwriters, there
are no material agreements, memoranda of understanding, cease and
desist orders, orders of prohibition or suspension or consent
decrees between any Bank Regulatory Authority and the Company or
any of its Significant Subsidiaries;
(q) no approval, authorization,
consent or order of or filing with any federal, state, local or
foreign governmental or regulatory commission, board, body,
authority or agency, or of or with any self-regulatory organization
or other non-governmental regulatory authority (including, without
limitation, NASDAQ), or approval of the stockholders of the
Company, is required in connection with the issuance and sale of
the Securities or the consummation of the transactions contemplated
hereby, other than (i) registration of the Securities under
the Act, which has been effected (or, with respect to any
registration statement to be filed hereunder pursuant to Rule
462(b) under the Act, will be effected in accordance herewith),
(ii) any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Securities are
being offered by the Underwriters, (iii) under the Conduct
Rules of FINRA, or (iv) the qualification of the Indenture
under the Trust Indenture Act, which has been effected;
(r) each of the Company and its
subsidiaries has all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary
licenses, authorizations, consents and approvals from other
persons, in order to conduct their respective businesses, except
where the failure to have such licenses, authorizations, consents
and approvals and making all filings would not, individually or in
the aggregate, have a Material Adverse Effect; neither the Company
nor any of its subsidiaries is in violation of, or in default
under, or has received notice of any proceedings relating to
revocation or modification of, any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to
the Company or any of its subsidiaries, except where such
violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse
Effect;
(s) other than as set forth in the
Pre-Pricing Prospectus, there are no actions, suits, claims,
investigations or proceedings pending or, to the Company’s
knowledge, threatened, or contemplated by the Company, to which the
Company or any of its subsidiaries or any of their respective
directors or officers is or would be a party or of which any of
their respective properties is or would be subject at law or in
equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, or before or by any self-regulatory organization or other
non-governmental regulatory authority (including, without
limitation, NASDAQ), except any such action, suit, claim,
investigation or proceeding which, if resolved adversely to the
Company or any subsidiary, would not, individually or in the
aggregate, have a Material Adverse Effect;
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(t) Deloitte & Touche LLP,
whose report on the financial statements of the Company and its
subsidiaries is included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, are
independent registered public accountants as required by the Act
and by the rules of the Public Company Accounting Oversight
Board;
(u) the financial statements
included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, together with the
related notes and schedules, present fairly in all material
respects the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results
of operations, cash flows and changes in stockholders’ equity
of the Company for the periods specified and have been prepared in
compliance with the requirements of the Act and Exchange Act and in
conformity with U.S. generally accepted accounting principles
applied on a consistent basis during the periods involved; the
other financial and statistical data contained or incorporated by
reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are accurately and fairly presented in all
material respects and prepared on a basis consistent with the
financial statements and books and records of the Company; there
are no financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the
Registration Statement, any Pre-Pricing Prospectus or the
Prospectus that are not included or incorporated by reference as
required; the Company and the Significant Subsidiaries do not have
any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations), not described in the
Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus; and all disclosures
contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, regarding
“non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Act, to the extent applicable;
(v) Neither the Company nor any of
its Significant Subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Pre-Pricing Prospectus and the Prospectus 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 Pre-Pricing Prospectus and the Prospectus; and,
since the respective dates as of which information is given or
incorporated by reference in the Registration Statement and the
Pre-Pricing Prospectus, there has not been any material change in
the capital stock or long term debt of the Company or any of
its Significant Subsidiaries or any material adverse change,
or any development involving a prospective 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, otherwise than
as set forth or contemplated in the Pre-Pricing Prospectus and the
Prospectus;
- 11 -
(w) the Company is not, and at no
time during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Securities will it be, and, after giving effect to the offering and
sale of the Securities, it 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 ”);
(x) each of the Company and the
Significant Subsidiaries owns or possesses all material inventions,
patent applications, patents, trademarks (both registered and
unregistered), tradenames, service names, copyrights, trade secrets
and other proprietary information described in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, as being owned or
licensed by it or which is necessary for the conduct of, or
material to, its businesses (collectively, the “
Intellectual Property ”). To the knowledge of the
Company, neither the Company nor any of the Significant
Subsidiaries has infringed or is infringing the intellectual
property of a third party. Neither the Company nor any Significant
Subsidiary has received written notice of any claim by a third
party of infringement or conflict with any such rights of others to
Intellectual Property, except for such claims as would not,
individually or in the aggregate, have a Material Adverse
Effect;
(y) all taxes and other assessments
of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have
been timely paid, other than those being contested in good faith
and for which adequate reserves have been provided, except where
the failure to pay such taxes or other assessments would not,
individually or in the aggregate, have a Material Adverse
Effect;
(z) neither the Company nor any
Significant Subsidiary has sent or received any communication
regarding termination of, or intent not to renew, any of the
material contracts or agreements referred to or described in any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, or referred to or described in, or filed as an
exhibit to, the Registration Statement or any Incorporated
Document, and no such termination or non-renewal has been
threatened by the Company or any Significant Subsidiary or, to the
Company’s knowledge, any other party to any such contract or
agreement;
(aa) the Company and each of the
Significant Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with 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;
(iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences; and (v) except as
disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, there are no material weaknesses in the
Company’s internal controls;
- 12 -
(bb) the Company has established and
maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and “internal control over
financial reporting” (as such term is defined in Rule 13a-15
and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries,
is made known to the Company’s Chief Executive Officer and
its Chief Financial Officer by others within those entities, and
such disclosure controls and procedures are effective to perform
the functions for which they were established; the Company’s
independent auditors and the Audit Committee of the Board of
Directors of the Company have been advised of: (i) all
significant deficiencies, if any, in the design or operation of
internal controls which could adversely affect the Company’s
ability to record, process, summarize and report financial data;
and (ii) all fraud, if any, whether or not material, that
involves management or other employees who have a role in the
Company’s internal controls; all material weaknesses, if any,
in internal controls have been identified to the Company’s
independent auditors; since the date of the most recent evaluation
of such disclosure controls and procedures and internal controls,
there have been no significant changes in internal controls or in
other factors that have materially affected or are reasonably
likely to materially affect internal controls, including any
corrective actions with regard to significant deficiencies and
material weaknesses; the principal executive officers (or their
equivalents) and principal financial officers (or their
equivalents) of the Company have made all certifications required
by the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley
Act ”) and any related rules and regulations promulgated
by the Commission;
(cc) all statistical or
market-related data included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, are
based on or derived from sources that the Company reasonably
believes to be reliable and accurate, and the Company has obtained
the written consent to the use of such data from such sources to
the extent required;
(dd) neither the Company nor any of
the Significant Subsidiaries nor, to the knowledge of the Company,
any director, officer, employee or agent acting on behalf of the
Company or any of the Significant Subsidiaries or any affiliate
that directly or indirectly is controlled by the Company (such
affiliate, a “downstream affiliate”) has violated or is
in violation of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “
Foreign Corrupt Practices Act ”); and the Company, the
Significant Subsidiaries and, to the knowledge of the Company, its
downstream affiliates have instituted and maintain policies and
procedures designed to ensure continued compliance
therewith;
- 13 -
(ee) the operations of the Company
and the Significant Subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “ Money Laundering Laws ”); and no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator or non-governmental authority
involving the Company or any of the Significant Subsidiaries with
respect to the Money Laundering Laws is pending or, to the
Company’s knowledge, threatened;
(ff) neither the Company nor any of
the Significant Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company
or any of the Significant Subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“ OFAC ”); and
the Company will not directly or indirectly use the proceeds of the
offering of the Securities contemplated hereby, or lend, contribute
or otherwise make available such proceeds to any Significant
Subsidiary, joint venture partner or other person or entity for the
purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC;
(gg) no Significant Subsidiary is
currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on
such Significant Subsidiary’s capital stock, from repaying to
the Company any loans or advances to such Significant Subsidiary
from the Company or from transferring any of such Significant
Subsidiary’s property or assets to the Company or any other
Significant Subsidiary of the Company, except as described in the
Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus, the Prospectus and the Permitted Free
Writing Prospectuses, if any;
(hh) the Securities constitute
“Senior Debt” as such term is defined in the Junior
Subordinated Indenture dated as of October 5, 2007 between the
Company and The Bank of New York Trust Company, N.A.
In addition, any certificate signed
by any officer of the Company or any of the Significant
Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Securities
shall be deemed to be a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
4. Certain Covenants of the
Company . The Company agrees:
(a) to prepare the Prospectus in a
mutually agreed form and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission’s close of
business on the second business day following the date of this
Agreement; to make no further amendment or any supplement to the
Registration Statement, the Basic Prospectus, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, if any, prior to the Time of Purchase unless mutually
agreed; to advise you,
- 14 -
promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish you with
copies thereof; to prepare a final term sheet, containing solely a
description of the Securities, in a form set forth in Schedule C
hereto and to file such term sheet pursuant to Rule 433(d) under
the Act within the time required by such Rule; to file promptly all
other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act (without reliance
on Rule 164(b) under the Act), and to comply with Rule 433(g) under
the Act;
(b) to furnish such information as
may be required and otherwise to cooperate in qualifying the
Securities for offering and sale under the securities or blue sky
laws of such states or other jurisdictions as you may designate and
to maintain such qualifications in effect so long as you may
request for the distribution of the Securities; provided ,
however , that the Company shall not be required to qualify
as a foreign corporation or to consent to the service of process
under the laws of any such jurisdiction (except service of process
with respect to the offering and sale of the Securities); and to
promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Securities for offer or sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose;
(c) to make available to the
Underwriters in New York City, as soon as practicable after this
Agreement becomes effective, and thereafter from time to time to
furnish to the Underwriters, as many copies of the Prospectus (or
of the Prospectus as amended or supplemented if the Company shall
have made any amendments or supplements thereto after the effective
date of the Registration Statement) as the Underwriters may request
for the purposes contemplated by the Act; in case any Underwriter
is required to deliver (whether physically or through compliance
with Rule 172 under the Act or any similar rule), in connection
with the sale of the Securities, a prospectus after the nine-month
period referred to in Section 10(a)(3) of the Act, or after
the time a post-effective amendment to the Registration Statement
is required pursuant to Item 512(a) of Regulation S-K under
the Act, the Company will prepare, at its expense, promptly upon
request such amendment or amendments to the Registration Statement
and the Prospectus as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the Act or
Item 512(a) of Regulation S-K under the Act, as the case may
be;
(d) if, at the time this Agreement
is executed and delivered, it is necessary or appropriate for a
post-effective amendment to the Registration Statement, or a
Registration Statement under Rule 462(b) under the Act, to be filed
with the Commission and become effective before the Securities may
be sold, the Company will use its reasonable best efforts to cause
such post-effective amendment or such Registration Statement to be
filed and become effective, and will pay any applicable fees in
accordance with the Act, as soon as possible; and the Company will
advise you promptly and, if requested by you, will confirm such
advice in writing, (i) when such post-effective amendment or
such Registration Statement has become effective, and (ii) if
Rule 430A under the Act is used, when the Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner in accordance with such
Rules);
- 15 -
(e) if, at any time during the
period when a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with the offering and sale
of Securities, the Registration Statement shall cease to comply
with the requirements of the Act with respect to eligibility for
the use of the form on which the Registration Statement was filed
with the Commission, to (i) promptly notify you,
(ii) promptly file with the Commission a new registration
statement under the Act, relating to the Securities, or a
post-effective amendment to the Registration Statement, which new
registration statement or post-effective amendment shall comply
with the requirements of the Act and shall be in a form
satisfactory to you, (iii) use their reasonable best efforts
to cause such new registration statement or post-effective
amendment to become effective under the Act as soon as practicable,
(iv) promptly notify you of such effectiveness and
(v) take all other action necessary or appropriate to permit
the public offering and sale of the Securities to continue as
contemplated in the Prospectus; all references herein to the
Registration Statement shall be deemed to include each such new
registration statement or post-effective amendment, if
any;
(f) if the third anniversary of the
initial effective date of the Registration Statement (within the
meaning of Rule 415(a)(5) under the Act) shall occur at any time
during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any offering
and sale of Securities, to file with the Commission, prior to such
third anniversary, a new registration statement under the Act
relating to the Securities, which new registration statement shall
comply with the requirements of the Act (including, without
limitation, Rule 415(a)(6) under the Act) and shall be in a form
satisfactory to you; such new registration statement shall
constitute an “automatic shelf registration statement”
(as defined in Rule 405 under the Act); provided ,
however , that if the Offerors are not then eligible to file
an “automatic shelf registration statement” (as defined
in Rule 405 under the Act), then such new registration statement
need not constitute an “automatic shelf registration
statement” (as defined in Rule 405 under the Act), but the
Offerors shall use their reasonable best efforts to cause such new
registration statement to become effective under the Act as soon as
practicable, but in any event within 180 days after such third
anniversary and promptly notify you of such effectiveness; the
Offerors shall take all other action necessary or appropriate to
permit the public offering and sale of the Securities to continue
as contemplated in the Prospectus; all references herein to the
Registration Statement shall be deemed to include each such new
registration statement, if any;
(g) at any time during the period
when a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with the offering and sale of
Securities, to advise you promptly, confirming such advice in
writing, of any request by the Commission for
- 16 -
amendments or supplements to the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus
or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the
effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to use the Company’s reasonable best
efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement, any Pre-Pricing Prospectus
or the Prospectus, and to provide you and Underwriters’
counsel copies of any such documents for review and comment a
reasonable amount of time under the circumstances prior to any
proposed filing and to file no such amendment or supplement to
which you shall object in writing;
(h) subject to Section 4(f)
hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required
to be filed by the Company with the Commission in order to comply
with the Exchange Act for so long as a prospectus is required by
the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with
any sale of the Securities; and to provide you with a copy of such
reports and statements and other documents to be filed by the
Company pursuant to Section 13, 14 or 15(d) of the Exchange
Act during such period a reasonable amount of time prior to any
proposed filing; and to promptly notify you of such
filing;
(i) to advise the Underwriters
promptly of the happening of any event within the period during
which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with the offering and sale of the
Securities, which event could require the making of any change in
the Prospectus then being used so that the Prospectus would not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not
misleading, and to advise the Underwriters promptly if, during such
period, it shall become necessary to amend or supplement the
Prospectus to cause the Prospectus to comply with the requirements
of the Act, and, in each case, during such time, subject to
Section 4(f) hereof, to prepare and furnish, at the
Company’s expense, to the Underwriters promptly such
amendments or supplements to such Prospectus as may be necessary to
reflect any such change or to effect such compliance;
(j) the Company agrees that if at
any time following issuance of an Issuer Free Writing Prospectus
any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the
Registration Statement, the Pre-Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice
thereof to you and, if requested by you, will prepare and furnish
without charge to each Underwriter an Issuer Free Writing
Prospectus or other document that will correct such conflict,
statement or omission;
- 17 -
(k) to make generally available to
its security holders, and to deliver to you, an earnings statement
of the Company (which will satisfy the provisions of
Section 11(a) of the Act) covering a period of twelve months
beginning after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month
period;
(l) on your request, to furnish to
you such reasonable number of copies of the Registration Statement,
as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto and documents incorporated
by reference therein) and sufficient copies of the foregoing (other
than exhibits) for distribution of a copy to each of the other
Underwriters;
(m) to apply the net proceeds from
the sale of the Securities in the manner set forth under the
caption “Use of Proceeds” in the Prospectus
Supplement;
(n) with respect to the Company to
pay all costs, expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement,
each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus, each Permitted Free Writing Prospectus
and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Securities to the
Underwriters, including any transfer taxes and stamp or similar
duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iii) the producing, word
processing and/or printing of this Agreement, any dealer
agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including
costs of mailing and shipment), (iv) the qualification of the
Securities for offering and sale under state laws and the
determination of their eligibility for investment under state law
(including the reasonable legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any filing for
review of the public offering of the Securities by the FINRA,
including the reasonable legal fees and filing fees and other
disbursements of counsel to the Underwriters relating to thereto,
(vi) the fees and disbursements of any trustee or paying agent
for the Securities (including related fees and expenses of any
counsel to such parties), (vii) the costs and expenses of the
Company relating to presentations or meetings undertaken in
connection with the marketing of the offering and sale of the
Securities to prospective investors and the Underwriters’
sales forces, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road
show presentations, travel, lodging and other expenses incurred by
the officers of the Company and any such consultants, and the cost
of any aircraft chartered in connection with the road show,
(viii) the fees and expenses of the Company’s counsel
and independent accountants, (ix) any fees charged by rating
agencies for rating the Securities, and (x) the performance of
the Company’s other obligations hereunder; provided, however,
that except as otherwise set forth in Sections 5 and 9 of this
Agreement, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of counsel for the
Underwriters;
- 18 -
(o) not, at any time at or after the
execution of this Agreement, directly or indirectly, to offer or
sell any Securities by means of any “prospectus”
(within the meaning of the Act), or use any
“prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Securities, in each case
other than the Prospectus;
(p) not to, and to cause
