Exhibit 1.1
Zions Bancorporation
8,000,000 Depositary Shares
Each Representing a 1/40 th Interest
In a Share of
Series A Floating-Rate Non-Cumulative
Perpetual Preferred Stock
Underwriting
Agreement
December 4, 2006
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Banc of America Securities LLC
Keefe, Bruyette & Woods, Inc.
Lehman Brothers Inc.
Ryan Beck & Co.
c/o Goldman, Sachs & Co.,
85 Broad Street
New York, New York 10004
and
Merrill Lynch, Pierce, Fenner & Smith Incorporated
WFC — North Tower
250 Vesey Street
New York, New York 10080
Ladies and Gentlemen:
Zions Bancorporation, a Utah
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the “
Underwriters ”), for whom Goldman, Sachs & Co. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting
as the representatives (the “ Representatives
”), 9,600,000 depositary shares (the “ Depositary
Shares ”), each representing a 1/40 th interest in the Company’s
Series A Floating-Rate Non-Cumulative Perpetual Preferred
Stock (the “ Preferred Stock ”) and collectively
representing 240,000 shares of Preferred Stock (the “
Preferred Shares ” and, together with the Depositary
Shares, the “ Securities ”). The Preferred
Stock is to be deposited against delivery of Depositary Receipts
(the “ Depositary Receipts ”) evidencing
Depositary Shares that are to be issued by Zions First National
Bank, as depositary (the “ Depositary ”), under
the Deposit Agreement to be entered into among the Company, the
Depositary and the holders from time to time of the Depositary
Receipts issued thereunder (the “ Deposit Agreement
”).
1.
The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a)
An “automatic shelf registration statement” as defined
under Rule 405 under the Securities Act of 1933, as amended (the
“ Act ”), on Form S-3 (File No. 333-132868), in
respect of the Securities was filed by the Company with the
Securities and Exchange Commission (the “ Commission
”) not earlier than three years prior to the date hereof;
such registration statement, and any post-effective amendment
thereto became effective on filing; and no stop order suspending
the effectiveness of such registration statement or any part
thereof has been issued
and no proceeding
for that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission, and no notice of objection
of the Commission to the use of such form of registration statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act has been received by the Company (the base prospectus
filed as part of such registration statement, in the form in which
it has most recently been filed with the Commission on or prior to
the date of this Agreement, is hereinafter called the “
Basic Prospectus ”); any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Securities filed with the Commission pursuant to Rule 424(b) under
the Act is hereinafter called a “ Preliminary
Prospectus ”; the various parts of such registration
statement, including all exhibits thereto but excluding any Form
T-1 and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue
of Rule 430B to be part of such registration statement, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the “
Registration Statement ”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(c) hereof), is hereinafter called the
“ Pricing Prospectus ”; the form of the final
prospectus relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof is hereinafter called the “ Prospectus
”; any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as
of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act and any documents
filed under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), and incorporated therein, in
each case after the date of the Basic Prospectus, such Preliminary
Prospectus or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any “issuer
free writing prospectus” as defined in Rule 433 under the Act
relating to the Securities is hereinafter called an “
Issuer Free Writing Prospectus ”);
(b)
No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and did 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 the
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 expressly for use therein;
(c)
For the purposes of this Agreement, the “ Applicable
Time ” is 2:00 p.m. (Eastern time) on the date of this
Agreement; the Pricing Prospectus as supplemented by the final term
sheet prepared and filed pursuant to Section 5(a) hereof, taken
together (collectively, the “ Pricing Disclosure
Package ”) as of the Applicable Time, did 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; and each Issuer Free Writing Prospectus listed on
Schedule II(a) and Schedule II(b) hereto does not conflict
with
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the information
contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did 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;
provided , however , that this representation and
warranty shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(d)
The documents incorporated by reference in the Pricing Prospectus
and the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material
respects to the applicable requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents, when they became effective
or were filed with the Commission, 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 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 applicable requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder 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 expressly for use therein; no such documents were
filed with the Commission since the Commission’s close of
business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as
set forth on Schedule III hereto; and the financial statements of
the Company and its consolidated subsidiaries and of Amegy
Bancorporation, Inc. (“ Amegy ”) and its
consolidated subsidiaries incorporated by reference in the
Registration Statement, the Pricing Prospectus and the Prospectus,
together with the related schedules and notes, present fairly in
all material respects the financial position of the Company and its
consolidated subsidiaries or Amegy and its consolidated
subsidiaries, as applicable, at the dates indicated and the results
of operations and cash flows for the periods shown in such
financial statements and, except as otherwise disclosed in the
Registration Statement, the Pricing Prospectus and the Prospectus,
such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis;
(e)
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement and
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, 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; 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 expressly for use therein;
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(f)
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 Pricing 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 Pricing
Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Pricing Prospectus,
there has not been any change in the capital stock (other than (i)
repurchases of common stock of the Company in an aggregate amount
that is less than 2% of the number of outstanding shares of common
stock on the date hereof and (ii) issuances of or other transfers
of capital stock in the ordinary course of business pursuant to the
Company’s employee benefit plans or awards issued thereunder)
or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries,
otherwise than as disclosed, set forth or contemplated in the
Pricing Prospectus;
(g)
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Pricing Prospectus;
(h)
The Company has an authorized capitalization as set forth in the
Pricing Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(i)
The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, such Securities will have
been duly and validly issued and will be fully paid and
non-assessable; the Securities conform to the descriptions thereof
contained in the Pricing Prospectus and will conform to the
descriptions thereof contained in the Prospectus;
(j)
The issue and sale of the Securities, the compliance by the Company
with all of the provisions of the Securities, the Deposit
Agreement, and this Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, loan
agreement or material mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company
is subject, nor will such action result in any violation of the
provisions of the Restated Articles of Incorporation, as amended,
or Restated Bylaws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by
this Agreement or the Deposit Agreement, except such as have been
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 Securities by the
Underwriters;
(k)
The statements set forth in the Pricing Prospectus and the
Prospectus under the captions “Description of Series A
Preferred Stock”, “Description of Depositary
Shares”, “Description of Preferred Stock We May
Offer” and “Description of Depositary Shares We May
Offer”, insofar as they purport to constitute a summary of
the terms of the Securities, and under
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the captions
“Plan of Distribution” and “Underwriting”,
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and
fair;
(l)
Neither the Company nor any of its subsidiaries is in violation of
its charter or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, loan agreement or material
mortgage, deed of trust or other agreement or instrument to which
it is a party or by which it or any of its properties may be
bound;
(m)
Other than as set forth in the Pricing Prospectus, there are no
legal or governmental proceedings pending 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, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(n)
(A) (i) At the time of filing the Registration Statement, (ii) 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),
and (iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c)
under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company
was a “well-known seasoned issuer” as defined in Rule
405 under the Act; and (B) 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) under the Act) of the Securities, the Company was not an
“ineligible issuer” as defined in Rule 405 under the
Act;
(o)
The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an “investment
company”, as such term is defined in the Investment Company
Act of 1940, as amended (the “ Investment Company Act
”);
(p)
Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, and have audited
the Company’s internal control over financial reporting and
management’s assessment thereof, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(q)
The Company has been duly qualified as a foreign corporation 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;
(r)
The Company is a financial holding company registered under the
Bank Holding Company Act of 1956, as amended; and each of the
Company’s banking subsidiaries holds the requisite authority
from its respective banking regulatory authority to do business as
a national banking association under the laws of the United States
or as a state-chartered banking corporation under the laws of such
subsidiary’s jurisdiction of incorporation, as the case may
be; and
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(s)
Each significant subsidiary (as defined in Rule 1-02 of Regulation
S-X of the Commission) (each, a “ Significant
Subsidiary ”) of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; and all of the issued
shares of capital stock of each such Significant Subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors’ qualifying shares)
are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims.
(t)
The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal
control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over
financial reporting;
(u)
Since the date of the latest audited financial statements included
or incorporated by reference in the Pricing Prospectus, there has
been no change in the Company’s internal control over
financial reporting that has materially adversely affected, or is
reasonably likely to materially adversely affect, the
Company’s internal control over financial reporting;
and
(v)
The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that
comply with the requirements of the Exchange Act; such disclosure
controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; and
such disclosure controls and procedures are effective.
2.
Subject to the terms and conditions set forth herein the Company
agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Company, at the purchase price to the Underwriters of
$24.625 per Depositary Share, the number of Depositary Shares set
forth opposite the name of such Underwriter in Schedule I
hereto.
3.
Upon authorization by the Representatives of the release of the
Securities, the several Underwriters propose to offer the
Securities for sale upon the terms and conditions set forth in the
Prospectus.
4.
(a) The
Depositary Shares to be purchased by each Underwriter hereunder,
will be represented by one or more definitive global Depositary
Shares in book-entry form which will be deposited by or on behalf
of the Company with The Depository Trust Company (“
DTC ”) or its designated custodian. The Company
will deliver the Depositary Shares to the Representatives for the
account of each Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to
Goldman, Sachs & Co. at least forty-eight hours in advance, by
causing DTC to credit the Depositary Shares to the account of
Goldman, Sachs & Co. at DTC. The Company will cause a
certificate representing the Depositary Shares to be made available
to the Representatives for checking at least twenty-four hours
prior to the First Time of Delivery (as defined below) at the
office of DTC or its designated custodian (the “
Designated Office ”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on
December 7, 2006 or such other time and date as the Representatives
and the Company may agree upon in writing. Such time and date are
herein called the “Time of Delivery”.
6
(b)
The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof,
including the cross-receipt for the Depositary Shares and any
additional documents requested by the Underwriters pursuant to
Section 8(j) hereof, will be delivered at the offices of Sullivan
& Cromwell LLP, 1888 Century Park East, Los Angeles, California
90067 (the “Closing Location”), and the Preferred
Shares will be delivered at the Closing Location, all at the Time
of Delivery. A meeting will be held at the Closing Location at 4:00
p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the
purposes of this Section 4, “ New York Business Day
” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive
order to close.
5.
The Company agrees with each of the Underwriters:
(a)
To prepare the Prospectus in a form approved by the Representatives
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 or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or the Prospectus prior to the Time of Delivery which
shall be disapproved by the Representatives promptly after
reasonable notice thereof; so long as the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is required in connection with the offering or sale of the
Securities, to advise the Representatives, 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 the Representatives with copies thereof; to prepare a final
term sheet, containing solely a description of the Securities, in
the form set forth in Schedule II(a) 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; to file promptly all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required in connection with the offering
or sale of the Securities; to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or other prospectus in respect of the
Securities, of any notice of objection of the Commission to the use
of the form of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act, of the
suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the form of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus in respect of the Securities or
suspending any such qualification, to promptly use its reasonable
best efforts to obtain the withdrawal of such order; and in the
event of any such issuance of a notice of objection, promptly to
take such reasonable steps as may be necessary to permit offers and
sales of the Securities by the Underwriters, which may include,
without limitation, amending the Registration Statement or filing a
new registration statement, at the Company’s expense
(references herein to the Registration Statement shall include any
such amendment or new registration statement);
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(b)
If required by Rule 430B(h) under the Act, to prepare a form of
prospectus in a form approved by the Representatives and to file
such form of prospectus pursuant to Rule 424(b) under the Act not
later than may be required by Rule 424(b) under the Act; and to
make no further amendment or supplement to such form of prospectus
which shall be disapproved by the Representatives promptly after
reasonable notice thereof;
(c)
Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities, provided that in
connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(d)
Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with written and electronic
copies of the Prospectus in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus or, in lieu thereof, the notice referred to in Rule
173(a) under the Act is required at any time in connection with the
offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus or, in lieu
thereof, the notice referred to in Rule 173(a) under the Act is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many written and electronic copies as the Representatives may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(e)
To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company,
Rule 158);
(f)
During the period beginning from the date hereof and continuing to
and including (i) the date 30 days after the date hereof and
(ii) such earlier time as the Representatives may notify the
Company, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company
which are substantially similar to the Securities, including but
not limited to any options or warrants to purchase Securities or
any securities that are convertible into or exchangeable for, or
that represent the right to receive, Securities or any
substantially similar securities, without the prior written consent
of the Representatives;
(g)
To pay the required Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1) under the Act
without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) under the Act;
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(h)
To use the net proceeds received by it from the sale of the
Depositary Shares pursuant to this Agreement in the manner
specified in the Pricing Prospectus under the caption “Use of
Proceeds”; and
(i)
To use its reasonable best efforts to list the Depositary Shares on
the New York Stock Exchange (the “ Exchange
”).
6.
(a)
(i)
The Company represents and agrees that, other than the final term
sheet prepared and filed pursuant to Section 5(a) hereof and any
Issuer Free Writing Prospectus listed on Schedule II(b), without
the prior consent of the Representatives, it has not made and will
not make any offer relating to the Securities that would constitute
a “free writing prospectus” as defined in Rule 405
under the Act;
(ii)
each Underwriter represents and agrees that, without the prior
consent of the Company and the Representatives, other than one or
more term sheets relating to the Securities containing customary
information and conveyed to purchasers of Securities, it has not
made and will not make any offer relating to the Securities that
would constitute a free writing prospectus; and
(iii)
any such free writing prospectus the use of which has been
consented to by the Company and the Representatives (including the
final term sheet prepared and filed pursuant to Section 5(a)
hereof) is listed on Schedule II(a) or Schedule II(b)
hereto;
(b)
The Company has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c)
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 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 the Representatives and, if requested
by the Representatives, will prepare and furnish without charge to
each Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission;
provided, however, that this representation and
warranty shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use
therein.
7.
The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Securities
under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing
or producing any Agreement among Underwriters, this Agreement, any
Blue Sky and Legal Investment Memoranda, clo
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