Exhibit 1.1
MARSHALL & ILSLEY
CORPORATION
87,000,000 Shares of
Common Stock
Underwriting
Agreement
June 11, 2009
Morgan Stanley & Co.
Incorporated
Barclays Capital Inc.
As Representatives of the several
Underwriters
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Marshall & Ilsley Corporation, a
Wisconsin corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
number of shares of common stock, $1.00 par value per share (the
“Common Stock”), of the Company set forth in Schedule I
hereto (the “Firm Securities”). The Company also
proposes to grant to the Underwriters an option to purchase up to
the number of additional shares of Common Stock set forth in
Schedule I hereto (the “Option Securities” and,
together with the Firm Securities, the “Securities”).
To the extent there are no additional Underwriters listed on
Schedule II other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the
context requires.
The terms which follow, when used in this
Agreement, shall have the meanings indicated.
“Effective Date” shall mean each date that the
Registration Statement and any post-effective amendment or
amendments thereto (including the filing of any Annual Report on
Form 10-K) became or become effective. “Execution
Time” shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. “Base
Prospectus” shall mean the form of basic prospectus relating
to the Securities contained in the Registration Statement at the
Effective Date. “Issuer Free Writing Prospectus”
has the meaning set forth in Section 1(a)(iii) hereof.
“Free Writing Prospectus” has the meaning set
forth in Rule 405. “Rule 405,” “Rule
415” and “Rule 424” refer to such rules under
rules and regulations promulgated under the Act (the
“Securities Act Regulations”). “Time of
Sale” shall mean the time immediately prior to the time of
the first sale by an Underwriters of the Securities.
“Disclosure Package” has the meaning set forth in
Section 1(a)(iii) hereof. “Preliminary
Prospectus” shall mean any preliminary prospectus supplement
to the Base Prospectus which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
“Final Prospectus” shall mean the
prospectus
supplement relating to the Securities
that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Base Prospectus. “Registration
Statement” shall mean the registration statement referred to
in Section 1(a)(i) hereof, including documents incorporated by
reference, exhibits and financial statements, and any prospectus
supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each
Effective Date and, in the event any post-effective amendment
thereto becomes effective prior to each Closing Date (as defined
herein), shall also mean such registration statement as so amended.
Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or before the Effective Date or the
issue date of the Base Prospectus, any Preliminary Prospectus or
the Final Prospectus, as the case may be; and any reference herein
to the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date or
the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference.
1.
Representations and Warranties of the
Company . The Company
represents and warrants to, and agrees with, each Underwriter as of
the Execution Time, as of the Time of Sale, on each Closing Date,
and as of any time that the Registration Statement, any Preliminary
Prospectus or the Final Prospectus shall be amended or supplemented
(each of the times referenced above is referred to herein as a
“Representation Date”), as follows:
(a)
(i)
The Company meets the requirements for
use of Form S-3 under the Securities Act of 1933, as amended (the
“Act”), and has filed with the Securities and Exchange
Commission (the “Commission”) a registration statement
on such Form (File Number: 333-147162) for the registration under
the Act of equity and debt securities, including the Securities.
The Registration Statement became effective upon filing under
Rule 462(e) of the Securities Act Regulations (“Rule
462(e)”) on November 6, 2007, and any post-effective
amendment thereto also became effective upon filing under
Rule 462(e); no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with; the Company may have
filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more
preliminary prospectus supplements relating to the Securities, each
of which has previously been furnished to you; the Company will
file with the Commission a final prospectus supplement relating to
the Securities in accordance with Rule 424(b). At the
respective times that the Registration Statement and each amendment
thereto (including the filing of the Company’s most recent
Annual Report on Form 10-K with the Commission) became effective,
and at each Representation Date, the Registration Statement and any
amendments thereto complied and will comply in all material
respects with the requirements of the Act and the Securities Act
Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; the Final Prospectus when first filed in accordance
with Rule 424(b), on the
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Effective Date and at each Representation
Date, as supplemented as of any such time, complied and will comply
in all material respects with the requirements of the Act and the
Securities Act Regulations; the Final Prospectus and any
Preliminary Prospectus delivered to the Underwriters for use in
connection with the offering of the Securities are identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T; and at the date of the Final Prospectus, on
the Effective Date and at each Representation Date, neither the
Final Prospectus nor any amendment or supplement thereto included
or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(ii)
Any offer that is a written communication
relating to the Securities made prior to the filing of the
Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of
Rule 163(c) of the Securities Act Regulations) has been filed
with the Commission in accordance with the exemption provided by
Rule 163 of the Securities Act Regulations
(“Rule 163”) and otherwise complied with the
requirements of Rule 163, including, without limitation, the
legending requirement, to qualify such offer for the exemption from
Section 5(c) of the Act provided by Rule 163.
(iii)
As of the Time of Sale, the Base
Prospectus, the Preliminary Prospectus used most recently prior to
the Execution Time, the Issuer Free Writing Prospectuses, if any,
identified in Schedule III hereto, and any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package and the price
to the public, the number of Firm Securities and the number of
Option Securities to be included on the cover page of the Final
Prospectus, when taken together as a whole, all considered together
(collectively, the “Disclosure Package”) did not and
will not contain 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.
For the purposes of this Agreement,
“Issuer Free Writing Prospectus” means any
“issuer free writing prospectus,” as defined in Rule
433 of the Securities Act Regulations (“Rule 433”),
relating to the Securities that (i) is required to be filed with
the Commission by the Company, (ii) is a “road show”
that constitutes a written communication within the meaning of Rule
433(d)(8)(i), whether or not required to be filed with the
Commission or (iii) is exempt from filing pursuant to Rule
433(d)(5)(i) because it contains a description of the Securities or
of the offering that does not reflect the final terms, in each case
in the form filed or required to be filed with the Commission or,
if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
(v)
Each Issuer Free Writing Prospectus, as
of its issue date and at all subsequent times through the
completion of the public offer and sale of the Securities or until
any earlier date that the Company notified or notifies the
Underwriters, 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 Final
Prospectus, including
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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.
(vi)
The representations and warranties in
this subsection shall not apply to statements in or omissions from
the Registration Statement, the Final Prospectus or the Disclosure
Package made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein.
(b)
(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), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c)) made any offer relating to
the Securities in reliance on the exemption of Rule 163 and
(iv) at the date hereof, the Company was and is a “well-known
seasoned issuer,” as defined in Rule 405, including not
having been and not being an “ineligible issuer” as
defined in Rule 405; the Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405, and the Securities, since their registration on the
Registration Statement, have been and remain eligible for
registration by the Company on an “automatic shelf
registration statement” as defined in Rule 405; and the
Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) of the Securities Act Regulations objecting to
the use of the automatic shelf registration statement
form.
(c)
At the time of filing the Registration
Statement, at the earliest time thereafter that the Company or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the Securities Act
Regulations) of the Securities and at the date hereof, the Company
was not and is not an “ineligible issuer” as defined in
Rule 405.
(d)
The documents incorporated by reference
in the Registration Statement, the Final Prospectus or the
Disclosure Package, when they became effective or were filed with
the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the Final
Prospectus or the Disclosure Package, or any further amendment or
supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations 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 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 any Underwriter through the Representatives expressly
for use in
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the Registration Statement, the Final
Prospectus or the Disclosure Package as amended or
supplemented.
(e)
The Company (including its agents and
representatives, other than the Underwriters) has not made, used,
prepared, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to or make any offer
relating to the Securities that would constitute a Free Writing
Prospectus other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Act; or (ii)
other written communications approved in writing in advance by the
Underwriters. To the extent required pursuant to Rule 433(d),
any such Free Writing Prospectus as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Securities, complies or will comply in all material
respects with the requirements of the Act and has been, or will be,
filed with the Commission in accordance with the Act (to the extent
required pursuant to Rule 433(d)).
(f)
The Company has not distributed and will
not distribute, prior to the later of each Closing Date and the
completion of the Underwriters distribution of the Securities, any
written offering material in connection with the offering and sale
of the Securities other than the Disclosure Package, the Final
Prospectus, or any Issuer Free Writing Prospectus reviewed and
consented to by the Underwriters or included in the Registration
Statement.
(g)
The consolidated financial statements and
other financial information of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, the Final Prospectus and the Disclosure
Package present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries
as of the dates indicated therein and the consolidated results of
their operations for the periods specified therein; and except as
stated therein, such financial statements have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly, in all material respects, the information
required to be stated therein; the other financial information
included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Final Prospectus has been
derived from the accounting records of the Company and its
subsidiaries and presents fairly, in all material respects, the
information shown thereby; and the pro forma
financial information and the related notes thereto included or
incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus have been prepared in
accordance with the applicable requirements of the Act and the
Exchange Act, as applicable, and the adjustments underlying such
pro forma financial information are reasonable and
are set forth in the Registration Statement, the Disclosure Package
and the Final Prospectus.
(h)
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
Registration Statement, the Final Prospectus and the Disclosure
Package, any loss or interference with its business from fire,
explosion, flood, accident, terrorism 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 Registration Statement, the Final Prospectus
and the Disclosure Package or as would not be reasonably likely to
have a material adverse effect on the business, prospects,
management, financial position, shareholders’ equity or
results of
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operations of the Company and its
subsidiaries taken as a whole (a “Material Adverse
Effect”); and, since the respective dates as of which
information is given in the Registration Statement, the Final
Prospectus and the Disclosure Package, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, prospects,
management, financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Final
Prospectus.
(i)
Since the respective dates as of which
information is given in the Registration Statement, the Disclosure
Package and the Final Prospectus, there has not been any decreases
in the capital stock or increases in long-term borrowings of the
Company or any of its subsidiaries (other than (i) with respect to
capital stock, shares issued since March 31, 2009 under the
Company’s existing stock option and restricted stock plans,
existing employee stock purchase plan, dividend reinvestment plan
and retirement plans and (ii) with respect to long term borrowings,
(x) Federal Home Loan Bank borrowings made since March 31, 2009
made in the ordinary course of business, (y) the issuances of
long-term debt under the Company’s existing medium term notes
or bank notes programs; and (z) other immaterial borrowings in the
ordinary course of business of the type classified as “other
long term borrowings” on the Company’s balance sheet,
which borrowings or issuances under clauses (x), (y) and (z) in the
aggregate do not exceed $500,000,000) or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
prospects, management, financial position, shareholders’
equity or results of operations of the Company and its
subsidiaries, in each case, otherwise than as set forth or
contemplated in the Disclosure Package and the Final
Prospectus.
(j)
The Company and its subsidiaries have
good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Disclosure Package and the
Final Prospectus or such as would not be reasonably likely to have
a Material Adverse Effect and any real property and buildings held
under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions
as would not be reasonably likely to have a Material Adverse
Effect.
(k)
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 Final Prospectus and the
Disclosure Package, and, except as would not be reasonably likely
to have a Material Adverse Effect, 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; each subsidiary of the Company that is a
“significant subsidiary” within the meaning of
Rule 1-01(w) of Regulation S-X under the Act (a
“Significant Subsidiary”) has been duly incorporated
and is validly organized in good standing under the laws of its
jurisdiction of organization.
(l)
The Company has an authorized
capitalization as set forth in the Final Prospectus and the
Disclosure Package, 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 all of the
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issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable (except, in the case of
M&I Marshall & Ilsley Bank or any other bank organized
under the laws of Wisconsin, to the extent provided in Section
220.07 of the Wisconsin Statutes) and are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(m)
The Securities have been duly authorized
by the Company and, when issued and delivered in accordance with
the provisions of this Agreement, will be validly issued, fully
paid and non-assessable; and the issuance of the Securities is not
and will not be subject to preemptive or other similar rights; and
the Securities conform in all material respects to the description
thereof contained in the Disclosure Package and the Final
Prospectus; and the Company will apply to list the Securities on
the New York Stock Exchange (the
“Exchange”).
(n)
This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company, enforceable in
accordance with its terms.
(o)
The Company is a bank holding company
registered under the Bank Holding Company Act of 1956, as amended;
the Company and each of its subsidiaries have conducted their
businesses and are in compliance in all material respects with all
applicable federal and state laws and regulations, including,
without limitation, all laws and regulations restricting activities
of bank holding companies and banking organizations, except for any
noncompliance which would not be reasonably likely to have a
Material Adverse Effect.
(p)
The issue and sale of the Securities and
the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein
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, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Restated Articles of Incorporation, as amended, or the Amended and
Restated By-Laws 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 subsidiaries or any of
their 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 hereby, except for the registration under
the Act of the Securities 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.
(q)
Neither the Company nor any of its
subsidiaries is in violation of its Articles of Incorporation,
By-laws or similar organizational documents or, except as would not
be reasonably likely to have a Material Adverse Effect, in default
in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed
of
7
trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound.
(r)
Other than as set forth in the Final
Prospectus and the Disclosure Package, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject, which, individually or in the
aggregate, would 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.
(s)
After giving effect to the offering and
sale of the Securities, including the application of the use of
proceeds, the Company 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”).
(t)
Deloitte & Touche LLP, who have
certified certain consolidated financial statements of the Company
and its subsidiaries, are registered independent public accountants
as required by the Act, the rules and regulations of the Commission
thereunder and the Public Accounting Oversight Board (United
States).
(u)
The Company maintains a system of
internal control over financial reporting (as such term is defined
in Rule 13a-15(f) of the rules and regulations promulgated under
the Exchange Act (the “Exchange Act Regulations”)) 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 weakness in its internal control over financial
reporting.
(v)
Since the date of the latest audited
financial statements included or incorporated by reference in the
Disclosure Package and the Final Prospectus, there has been no
change in the Company’s internal control over financial
reporting that has materially and adversely affected, or is
reasonably likely to materially and adversely affect, the
Company’s internal control over financial
reporting.
(w)
The Company maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15(e) of
the Exchange Act Regulations) 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.
(x)
Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent or employee acting on behalf of the Company or any
of its subsidiaries has violated or is in violation of, in any
material respect, any provision of the Foreign Corrupt Practices
Act of 1977.
8
(y)
The operations of the Company and its
subsidiaries are and have been conducted at all times in material
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 knowledge of the Company, threatened.
(z)
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
will not 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.
(aa)
There is and has been no failure on the
part of the Company or any of the Company’s directors or
officers, in their capacities as such, to comply in any material
respect with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and
906 related to certifications.
(bb)
The Registration Statement is not the
subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the Act, and the Company is not the
subject of a pending proceeding under Section 8A of the Act in
connection with the offering of the Securities.
2.
Purchase and Sale
. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I
hereto, the number of Firm Securities set forth opposite such
Underwriter’s name in Schedule II hereto.
(b)
In addition, subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company hereby grants an option to the
several Underwriters to purchase, severally and not jointly, up to
the number of Option Securities set forth in Schedule I hereto at
the same purchase price per share as the Underwriters shall pay for
the Firm Securities. Said option may be exercised in whole or
in part at any time on or before the 30th day after the date of the
Final Prospectus upon written notice (each, an “Option
Exercise Notice”) by the Representatives to the Company
setting forth the number of Option Securities as to which the
several Underwriters are exercising the option and the time and
date of payment and delivery for such Option Securities (each, an
“Option Closing Date”). The number of Option
Securities to be purchased by each Underwriter on an Option Closing
Date shall be the same percentage of the total number of Option
Securities to be purchased by the several
9
Underwriters as such Underwriter is
purchasing of the Firm Securities, subject to such adjustments as
you in your absolute discretion shall make to eliminate any
fractional shares. Any Option Closing Date shall be
determined by the Representatives, but shall not be later than
three Business Days (as defined below) after the date of the Option
Exercise Notice unless otherwise agreed in writing by the parties
hereto, nor in any event prior to the Firm Closing Date (as defined
below).
3.
Offering by the
Underwriters . Upon the
authorization by you 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 Final Prospectus.
4.
Delivery and Payment
. (a) Delivery of and payment for
the Securities shall be made on the date and at the time specified
in Schedule I hereto or the Option Exercise Notice, as
applicable, or at such time on such later date not more than three
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 9 hereof (such date and time of delivery and payment
for the Securities specified in Schedule I being herein called the
“Firm Closing Date” and, together with any Option
Closing Date, each a “Closing Date”). Delivery of
the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by
the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the
Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct. If an Option
Closing Date occurs after the Firm Closing Date, the Company will
deliver to the Representatives on each Option Closing Date, and the
obligation of the Underwriters to purchase the applicable Option
Securities shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Firm Closing
Date pursuant to Section 7 hereof.
For the purposes of this Agreement,
“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.
Covenants of the Company
. The Company agrees with each of
the Underwriters:
(a)
Prior to the termination of the offering
of the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus
unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or
supplement to which you reasonably object. The Company will
cause the Final Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with
the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives (i) when
the Final Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to
Rule 424(b), (ii) when, prior to termination of the offering
of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of
any
10
request by the Commission or its staff
for any amendment of the Registration Statement or for any
supplement to the Final 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 that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the occurrence of
any such suspension or objection to the use of the Registration
Statement and, upon such issuance, occurrence or notice of
objection, to obtain as soon as possible the withdrawal of such
stop order or relief from such occurrence or objection, including,
if necessary, by filing an amendment to the Registration Statement
or a new registration statement and using its best efforts to have
such amendment or new registration statement declared effective as
soon as practicable.
(b)
If, at any time prior to the filing of
the Final Prospectus pursuant to Rule 424(b), any event occurs as a
result of which the Disclosure Package would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made or the circumstances then
prevaili
