Exhibit 1.1
E XECUTION V ERSION
LINCOLN NATIONAL
CORPORATION
Underwriting Agreement
Common Stock, No Par
Value
June 16, 2009
J.P. Morgan Securities
Inc.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
As Representatives of the several
Underwriters
listed in Schedule I
hereto
J.P. Morgan Securities
Inc.
383 Madison Avenue
New York, New York 10179
and
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Lincoln National Corporation, an
Indiana corporation (the “ Company ”), proposes
to issue and sell to the several Underwriters listed in
Schedule I hereto (the “ Underwriters ”,
for whom you are acting as representatives (the “
Representatives ”), an aggregate of 40,000,000 shares
of common stock, no par value (“Common Stock”), of the
Company (the “ Firm Securities ”) and an
aggregate of 6,000,000 additional shares of Common Stock (the
“ Option Securities ”) if and to the extent that
the Underwriters shall have determined to exercise the option to
purchase such Option Securities granted to the Underwriters in
Section 2 hereof (the Option Securities together with the Firm
Securities are herein referred to as the “ Securities
”).
The Company has prepared and filed
with the Securities and Exchange Commission (the “
Commission ”) under the Securities Act of 1933, as
amended (the “ Act ”), an “automatic shelf
registration statement” as defined under Rule 405 under the
Act on Form S-3 (file number 333-157822), relating to securities
(the “ Shelf Securities ”), including the
Securities, to be issued from time to time by the Company. Such
registration statement, including the exhibits thereto and the
other information and documents deemed pursuant to Rule 430B under
the Act to be part thereof as amended to (and including) the date
of this Agreement, but excluding any Statement of
Eligibility
(Form T-1) under the Trust Indenture Act of
1939, as amended, is hereinafter referred to as the “
Registration Statement ”. The term “ Basic
Prospectus ” means the prospectus, dated March 10,
2009, included in the Registration Statement. The Company proposes
to file with the Commission pursuant to Rule 424 under the Act
a supplement or supplements to the Basic Prospectus relating to the
Securities and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with
respect to the Company to be set forth therein. The term “
Prospectus ” means the Basic Prospectus, as
supplemented by the prospectus supplement including pricing
information specifically relating to the Securities in the form
filed pursuant to Rule 424(b) under the Act (or in the form first
made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Act) and the term
“ preliminary prospectus ” means any preliminary
form of the Prospectus including the “subject to
completion” legend required by Item 501(b)(10) under
Regulation S-K under the Act which has heretofore been filed
pursuant to Rule 424 under the Act. The term “ Time of
Sale Prospectus ” means the Basic Prospectus, as
supplemented by the preliminary prospectus last filed before the
Applicable Time (as defined below) pursuant to Rule 424 under the
Act relating specifically to the Securities, as of 7:30 P.M. on
June 16, 2009 (the “ Applicable Time ”),
together with the free writing prospectuses, if any, identified in
Schedule II hereto, and the term “ free writing
prospectus ” has the meaning set forth in Rule 405 under
the Act. As used herein, the terms “Registration
Statement,” “Basic Prospectus,”
“preliminary prospectus,” “Time of Sale
Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment,” and
“amend” as used herein with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus, the
Time of Sale Prospectus, the Prospectus or any free writing
prospectus shall be deemed to refer to and include the filing of
any free writing prospectus and the filing of any document under
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”) that are deemed to be incorporated
therein by reference.
1. Representations and
Warranties . The Company represents and warrants to, and agrees
with, each Underwriter that:
(a) The Company meets the
requirements for use of an “automatic shelf registration
statement” as defined under Rule 405 under the Act, on Form
S-3, and has filed with the Commission the Registration Statement,
which has become effective. The Registration Statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and
complies in all other material respects with said Rule.
(b) (i) Each document, if any,
filed or to be filed pursuant to the Exchange Act and incorporated
by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if
-2-
applicable, will not contain any
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, (iii) the Registration
Statement as of the date hereof and as of the Closing Date and as
of the Additional Closing Date, as the case may be (as both are
defined in Section 3) does not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (iv) the Registration Statement and the Prospectus
comply, and as amended or supplemented, if applicable, will comply,
in all material respects with the Act and the Exchange Act and the
applicable rules and regulations thereunder, (v) each free
writing prospectus filed by the Company, as of its issue date and
at all subsequent times through the completion of the public offer
and sale of the Securities, did not, does not and will not include
any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference
therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified, as they exist as
of the time of filing of such free writing prospectus,
(vi) the Time of Sale Prospectus does not, and at the time of
each sale of the Securities in connection with the offering and at
the Closing Date or the Additional Closing Date, as the case may
be, as then amended or supplemented by the Company, if applicable,
will not, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and (vii) the Prospectus, as of its date and as of
the Closing Date, or the Additional Closing Date, as the case may
be, does not and will not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply
to statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Prospectus as of its date and the
Closing Date or the Additional Closing Date, as the case may be,
based upon information relating to the Underwriters or any
underwriting arrangements furnished to the Company in writing by
any Underwriter specifically for use therein.
(c) The financial statements of the
Company and its consolidated subsidiaries included in the
Registration Statement fairly present the consolidated financial
condition and results of operations of the Company and its
consolidated subsidiaries as of the dates indicated and the results
of operations and changes in financial position for the periods
therein specified; neither the Company nor any of its consolidated
subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus or Time of Sale 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
-3-
than as set forth or contemplated in
the Prospectus and Time of Sale Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Basic Prospectus, there has not been
any material change in the capital stock (other than issuances of
common stock upon the exercise of outstanding employee stock
options or pursuant to existing employee compensation plans) 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 the condition (financial or other),
earnings, business or properties of the Company and its
consolidated subsidiaries taken as a whole whether or not arising
from transactions in the ordinary course of business, except as set
forth or contemplated in the Prospectus and Time of Sale
Prospectus.
(d) At the time of filing the
Registration Statement, 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 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.
(e) The Company is not an
“ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Act. Any free writing
prospectus that the Company is required to file pursuant to Rule
433(d) under the Act has been, or will be, filed with the
Commission in accordance with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder. Each
free writing prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) under the Act or that was prepared
by or on behalf of or used by the Company complies or will comply
in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder.
Except for the free writing prospectuses, if any, identified in
Schedule II hereto, and electronic road shows each furnished to you
before first use, the Company has not prepared, used or referred
to, and will not, without your prior consent, prepare, use or refer
to, any free writing prospectus.
(f) Any free writing prospectus,
including, without limitation, any electronic road show, when taken
together with the Time of Sale Prospectus, accompanying, or
delivered prior to the delivery of, such free writing prospectus,
did not, and at the Closing Date or the Additional Closing Date, as
the case may be, will not, contain any 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.
-4-
(g) The Company has been duly
incorporated and is validly existing as a corporation under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Basic
Prospectus and 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 qualified in any such jurisdiction; and each
subsidiary of the Company organized under the laws of the United
States representing 10% or more of the consolidated earnings before
income taxes and extraordinary items or consolidated total assets
of the Company (each such subsidiary as set forth in Schedule III
hereto, a “ Significant Subsidiary ”) has been
duly incorporated and is validly existing as a corporation under
the laws of its jurisdiction of incorporation except where the
failure to be so qualified or have such power and authority would
not, individually or in the aggregate, have a material adverse
effect on the business, financial position, stockholders’
equity, or results of operations of the Company and its
subsidiaries taken as a whole or the consummation by the Company of
the transactions contemplated by this Agreement (a “
Material Adverse Effect ”).
(h) The Company has an authorized
capitalization as set forth in the Time of Sale Prospectus and the
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, and the Securities are not subject
to any pre-emptive or similar rights; except as described in or
expressly contemplated by the Time of Sale Prospectus and the
Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of the
Significant Subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance
of any capital stock of the Company or any such Significant
Subsidiary (except, if any, such rights, warrants, options,
instruments, contracts, commitments, agreements, understandings or
arrangements in favor of the Company or any of its subsidiaries),
or any such convertible or exchangeable securities or any such
rights, warrants or options; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus; and all the outstanding shares of
capital stock or other equity interests of each Significant
Subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, all outstanding shares of capital
stock or other interests of the Significant Subsidiaries are owned
directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party except those that
would not, individually or in the aggregate, have a Material
Adverse Effect.
-5-
(i) With respect to the outstanding
stock options (the “ Stock Options ”) granted
pursuant to the stock-based compensation plans of the Company and
its subsidiaries (the “ Company Stock Plans ”),
(i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Internal Revenue Code of 1986, as amended (the “ Code
”) was designed to so qualify, (ii) each grant of a
Stock Option was duly authorized no later than the date on which
the grant of such Stock Option was by its terms to be effective
(the “ Grant Date ”) by all necessary corporate
action, including, as applicable, approval by the board of
directors of the Company (or a duly constituted and authorized
committee thereof or a duly authorized officer of the Company) and
any required shareholder approval by the necessary number of votes
or written consents, and the award agreement governing such grant
(if any) was duly executed and delivered by each party thereto,
(iii) each such grant was made in accordance with the
applicable material terms of the Company Stock Plans, the Exchange
Act and all other applicable laws and regulatory rules or
requirements, including the rules of the New York Stock Exchange
(the “ Exchange ”) and any other exchange on
which Company securities are traded, and (iv) each such grant
was properly accounted for in accordance with GAAP in the financial
statements (including the related notes) of the Company in all
material respects and disclosed in the Company’s filings with
the Commission in accordance with the Exchange Act and all other
applicable laws. The Company has not knowingly granted, and there
is no and has been no policy or practice of the Company of
granting, Stock Options prior to, or otherwise improperly
coordinating the grant of Stock Options with, the release or other
public announcement of material nonpublic information regarding the
Company or its subsidiaries or their results of operations or
prospects.
(j) The Securities have been duly
authorized, and, when issued and delivered pursuant to this
Agreement, such Securities will be duly and validly issued, fully
paid and nonassessable, and the issuance of such Securities will
not be subject to any preemptive or similar rights.
(k) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities 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
material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which the Company or any
subsidiary is a party or by which the Company or any subsidiary is
bound or to which any of the property or assets of the Company or
any subsidiary is subject, except for such conflicts, breaches,
violations or defaults as would not, individually or in the
aggregate, have a Material Adverse Effect, nor will such action
result in any violation of the provisions of (i) the articles
of incorporation or bylaws of the Company or any Significant
Subsidiary or (ii) any statute or any order, rule or
regulation of any court or governmental agency or body
having
-6-
jurisdiction over the Company, any
subsidiary or any of its respective properties, except, in the case
of (ii) above, for such violations that would not,
individually or in the aggregate, have a Material Adverse Effect;
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 the
Securities and this Agreement, except such as have been, or will
have been prior to the time of delivery, 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.
(l) Other than as set forth in the
Prospectus and the Time of Sale 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 would individually or
in the aggregate be reasonably likely to have a Material Adverse
Effect; and, to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(m) The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, all material
trademarks, service marks and trade names necessary to conduct the
business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any
trademarks, service marks or trade names that singly or in the
aggregate, would be reasonably likely to have a Material Adverse
Effect.
(n) The Company is not, and after
giving effect to the issuance and sale of the Securities will not
be an “investment company” or an entity controlled by
an “investment company” required to be registered under
the Investment Company Act of 1940, as amended.
(o) To the best of the
Company’s knowledge and belief, the Company has complied in
all material respects with, and the conduct of its business and the
conduct of business by its subsidiaries does not violate in any
material respect, any statute, law, regulation, rule, order or
directive of any federal, state or local governmental authority
applicable to the Company and its subsidiaries.
(p) The Company has been duly
registered as a savings and loan holding company under the
applicable provisions of the Home Owners’ Loan Act, as
amended; the Company and each of its subsidiaries are in compliance
in all material respects with all laws administered by and
regulations of the Federal Deposit Insurance Corporation (“
FDIC ”), the Office of Thrift Supervision and any
other federal or state bank regulatory authority (the “
Bank Regulatory
-7-
Authorities
”) with jurisdiction over the
Company or any of its subsidiaries, other than where such failures
to comply would not, individually or in the aggregate, have a
Material Adverse Effect, the deposit accounts of the
Company’s depository institution subsidiary are insured by
the FDIC to the fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceedings for the termination of
such insurance are pending or, to the best of the Company’s
knowledge, threatened other than where such failures to be insured,
individually or in the aggregate, would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries is a
party to any written agreement or memorandum of understanding with,
or a party to any commitment letter or similar undertaking to, or
is subject to any order or directive by, or is a recipient of any
extraordinary supervisory letter from, or has adopted any board
resolutions at the request of, any Bank Regulatory Authority which
restricts materially the conduct of its business, or in any manner
relates to its capital adequacy, its credit policies or its
management, nor have any of them been advised by any Bank
Regulatory Authority that it is contemplating issuing or requesting
(or is considering the appropriateness of issuing or requesting)
any such order, decree, agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter or similar
submission, or any such board resolutions other than where the
substance of such communications, individually or in the aggregate,
would not have a Material Adverse Effect.
(q) The Company maintains an
effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that is designed to ensure that information required
to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(r) The Company and its subsidiaries
maintain systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange
Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of, their respective
principal executive and principal financial officers, or persons
performing similar functions, 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,
including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial
-8-
statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except
as disclosed in the Registration Statement, the Prospectus and the
Time of Sale Prospectus, there are no material weaknesses in the
Company’s internal control over financial reporting. The
Company’s auditors and the Audit Committee of the Board of
Directors of the Company have been advised of: (i) all
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the Company’s ability
to record, process, summarize and report financial information; and
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal control over financial
reporting.
(s) To the best knowledge of the
Company, no director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(t) The operations of the Company
and its 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 involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(u) None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“ OFAC ”); and the
Company does not intend to directly or indirectly use the proceeds
of the offering of the Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any 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.
-9-
(v) The Company has not taken,
directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
(w) The application of the proceeds
received by the Company from the issuance, sale and delivery of the
Securities as described in the Registration Statement, the
Prospectus and the Time of Sale Prospectus will not violate
Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of
Governors.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees
to sell to the several Underwriters as provided in this Agreement,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price per share of $14.34, the
number of Firm Shares set forth opposite such Underwriter’s
name in Schedule I hereto.
Subject to the terms and conditions
and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to the several Underwriters as
provided in this Agreement, and the Underwriters shall have the
option to purchase, severally and not jointly, from the Company, at
the purchase price per share stated in the previous paragraph, the
number of Option Securities for which the Underwriters elect to
exercise such option.
If any Option Securities are to be
purchased, the amount of Option Securities to be purchased by each
Underwriter shall be the amount of Option Securities which bears
the same ratio to the aggregate amount of Option Securities being
purchased as the amount of Firm Securities set forth opposite the
name of such Underwriter in Schedule I hereto (or such amount
increased as set forth in Section 8 hereof) bears to the
aggregate amount of Firm Securities being purchased from the
Company by the several Underwriters, subject, however, to
adjustment to eliminate fractional shares as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the
option to purchase Option Securities at any time in whole, or from
time to time in part, on or before the thirtieth day following the
date of the Prospectus, by written notice from the Representatives
to the Company. Such notice shall set forth the aggregate amount of
Option Securities as to which the option is being exercised and the
date and time when the Option Securities are to be delivered and
paid for, which may be the same date and time as the Closing Date
but shall not be earlier than the Closing Date or later than the
first to occur of the tenth full business day after the date of
such notice (unless such time and date are postponed in accordance
with the provisions of Section 8 hereof) or the thirtieth day
following the Closing Date. Any such notice shall be given at least
two business days prior to the date
-10-
and time of delivery specified therein. No
Option Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and
delivered.
3. Delivery and Payment .
Securities to be purchased by the Underwriters hereunder, in
definitive form to the extent practicable, and in such authorized
denominations and registered in such names as each Underwriter may
request upon at least forty-eight hours’ prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the respective accounts of the several
Underwriters at the office of Sullivan & Cromwell LLP, at
10:00 A.M. on June 22, 2009 (or such later date not later than
five business days after such specified date as the Representatives
shall designate), which date and time may be postponed by agreement
between the Representatives and the Company or as provided in
Section 8 hereof (such date and time of delivery and payment
for the Firm Securities being herein called the “ Closing
Date ”) or, in the case of the Option Securities, on the
date and at the time and place specified by the Representatives in
the written notice of the Underwriters’ election to purchase
such Option Securities, which date and time of delivery and payment
for the Option Securities, if other than the Closing Date, is
herein referred to as the “ Additional Closing Date
”. Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by them of the purchase price thereof
in Federal (same day) funds by official bank check or checks to or
upon the order of the Company or by wire transfer to an account
specified by the Company.
The Company agrees to have the
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM
on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
4. Agreements .
(a) The Company agrees with each
Underwriter that:
(i) Prior to the termination of the
offering of the Securities, the Company will not file any amendment
or supplement to the Registration Statement, the Basic Prospectus
or the Time of Sale Prospectus and will not provide additional
information to the Commission relating to the Registration
Statement, the Basic Prospectus or the Time of Sale Prospectus
unless the Company has furnished you a copy for your review and
provided you with a reasonable opportunity to comment on such
proposed amendment, supplement, or information prior to filing or
submitting the same and will not file any such proposed amendment
or supplement and will not submit such additional information to
which you reasonably object. The Company will promptly advise the
Representatives and will promptly confirm such advice in writing
(i) when the Prospectus shall have been filed (or transmitted
for filing) with the
-11-
Commission pursuant to
Rule 424, (ii) when any amendment to the Registration
Statement relating to the Securities shall have been filed or
become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or
supplement to the Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any notice objecting to its use or the institution or threatening
of any proceeding for such purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of
the qualification of Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) As soon as practicable but in
any event not later than eighteen months after the deemed effective
date of the Registration Statement (as defined in Rule 158(c)
under the Act), the Company will make generally available to its
securityholders and to the Representatives a consolidated earnings
statement or statements of the Company and its subsidiaries (which
need not be audited) which will satisfy the provisions of
Section 11(a) of the Act and the rules and regulations
thereunder (including at the option of the Company Rule 158
under the Act).
(iii) The Company will furnish to
the Representatives and counsel for the Representatives, without
charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference) and will
deliver to the Representatives during the period mentioned in
Section 4(a)(v) or 4(a)(vii) below, as many copies of the Time
of Sale Prospectus, the Prospectus, any documents incorporated
therein by reference therein and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(iv) If the Time of Sale Prospectus
is being used to solicit offers to buy the Securities at a time
when the Prospectus is not yet available to prospective purchasers
and any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Time of Sale Prospectus
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if any
event shall occur or condition exist as a result of which the Time
of Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of
counsel for the Representatives, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Representatives and to any dealer upon
request, either amendments or supplements to the
-12-
Time of Sale Prospectus so that the
statements in the Time of Sale Prospectus as so amended or
supplemented will not, in the light of the circumstances under
which they were made when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with law.
(v) If, during such period after the
first date of the public offering of the Securities as in the
opinion of counsel for the Representatives the Prospectus (or in
lieu thereof the notice referred to in Rule 173(a) under the Act)
is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made when the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) under the
Act) is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Representatives, it is necessary to
amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its
own expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Securities
may have been sold by you and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances under which they were made
when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under the Act) is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented,
will comply with law.
(vi) The Company shall cause the
Securities to be listed on the Exchange not later than the Closing
Date.
(vii) The Company will promptly from
time to time arrange for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives
may reasonably designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities,
and will arrange for the determination of the legality of the
Securities for purchase by institutional investors; provided that
in connection therewith the Company shall not be required to
qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or to subject itself to
taxation in respect of doing business in any jurisdiction in which
it is not otherwise subject.
-13-
(viii) The Company covenants and
agrees with each Underwriter 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 in
connection with the preparation, printing and filing of the
Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, the Prospectus and any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including
all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in
the quantities hereinabove specified; (ii) the cost of
printing or producing this Agreement, any Blue Sky Survey, any
Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities;
(iii) all fees and expenses in connection with the listing of
the Securities on the Exchange and any other stock exchanges;
(iv) all expenses in connection with the qualification of the
Securities for offering and sale under state securities and Blue
Sky laws as provided in Section 4(a)(vii) hereof, including
any reasonable fees and disbursements of counsel for the
Representatives in connection with such qualification and in
connection with the Blue Sky and legal investment surveys;
(v) any fees charged by securities rating services for rating
the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee, Paying Agent, or
Transfer Agent and counsel for any such Trustee, Paying Agent or
Transfer Agent in connection with the Securities; and
(viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 6
and Section 7 hereof, the Underwriters will pay all of its own
costs and expenses, including the fees of its counsel, transfer
taxes on resale of any of the Securities by it, and any advertising
expenses connected with any offers it may make.
(ix) The Company will prepare the
Prospectus as amended and supplemented in relation to the
applicable Securities in a form approved by the Representatives and
will 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 execution and delivery of this
Agreement or, if applicable, such other time as may be required by
Rule 424(b) and file promptly and simultaneously provide the
Representatives with a copy of 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 (or in lieu thereof
the notice referred to in Rule 173(a) under the Act) of a
prospectus is required in connection with the offering or sale of
such Securities. The Company will prepare a final
-14-
term sheet, containing solely a
description of the Securities, in a form approved by the
Representatives and file such term sheet pursuant to Rule 433(d)
under the Act within the time required by such Rule, and will file
promptly all other material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the
Act.
(x) During a period of five years
from the date of the Basic Prospectus and, provided the following
are not available on the Commission’s EDGAR database, to
furnish to the Representatives copies of all reports or other
communications (financial or other) furnished to stockholders, and
deliver to the Representatives (i) as soon as they are
available, copies of any reports and financial statements furnished
to or filed with any national securities exchange on which the
Securities or any class of securities of the Company is listed or,
if requested by the Representatives, the Commission; and
(ii) such additional information concerning the business and
financial condition of the Company as the Representatives may from
time to time reasonably request (provided such financial statements
and reports are otherwise furnished to its stockholders generally
or to the Commission).
(xi) The Company has given the
Representatives notice of any filings made pursuant to the Exchange
Act or the rules or regulations thereunder within 48 hours prior to
the Applicable Time; the Company will give the Representatives
notice of its intention to make any such filing from the time of
each sale of the Securities to the Closing Date or to the
Additional Closing Date, as the case may be, and will furnish the
Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing and will not file or
use any such document to which the Representatives or counsel for
the Representatives shall reasonably object.
(xii) For a period of 90 days after
the date of the Prospectus, the Company will not (i) offer,
pledge, announce the intention to sell, sell, file a registration
statement in order to offer and sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or
other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (i) or (ii) above is
to be settled by delivery of Common Stock or such other securities,
in cash or otherwise, without the prior written consent of each of
the Representatives on behalf of the Underwriters, other than
(A) the Securities to be sold hereunder, (B) the grant of
options, units and rights
-15-
convertible into Common Stock,
restricted stock and Common Stock equivalents and issuance of
shares of Common Stock to employees, directors, agents or
consultants by the Company, in each case under the Company’s
stock plans in place on the date hereof in the ordinary course of
business, (C) any shares of Common Stock of the Company issued
upon the exercise of options granted under the Company’s
stock plans in place on the date hereof and (D) in connection
with the Company’s planned participation in the Capital
Purchase Program of the U.S. Department of the Treasury’s
Troubled Asset Relief Program, the preferred stock and warrants,
including any shares of Common Stock issuable upon exercise of such
warrants, to be issued to the U.S. Department of the
Treasury.
(b) Each Underwriter and the Company
agree as follows: The Company agrees that, unless it has obtained
or will obtain the prior written consent of each of the
Underwriters, and each Underwriter agrees that, unless it has
obtained or will obtain, as the case may be, the prior written
consent of the Company, it has not made and will not make any offer
relating to the Securities that would constitute an issuer free
writing prospectus as defined in Rule 433 (an “ Issuer
Free Writing Prospectus ”) or that would otherwise
constitute a free writing prospectus required to be filed by the
Company with the Commission or retained by the Company under Rule
433, other than the information contained in any final term sheet
prepared and filed pursuant to Section 4(a)(i) hereto;
provided that the prior written consent of the parties
hereto shall be deemed to have been given in respect of the free
writing prospectuses, if any, included in Schedule II hereto. Any
such free writing prospectus consented to by the each Underwriter
and the Company is hereinafter referred to as a “
Permitted Free Writing Prospectus .” The Company
agrees that (i) it has treated and will treat, as the case may
be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (ii) it has complied and will comply,
as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record
keeping.
5. Conditions to the Obligations
of the Underwriters . The obligation of each Underwriter to
purchase the Securities under this Agreement shall be subject to
the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof, as of the date
of the Time of Sale Prospectus, as of the date of the effectiveness
of any amendment to the Registration Statement filed prior to the
Closing Date with respect to such Securities (including the filing
of any document incorporated by reference therein) and as of the
Closing Date with respect to the Firm Securities and, as of the
Additional Closing Date with respect to the Option Securities, to
the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance
by the Company of its oblig
