Exhibit 1.1
$500,000,000
AMERIPRISE FINANCIAL, INC.
7.518% JUNIOR SUBORDINATED NOTES DUE 2066
UNDERWRITING AGREEMENT
May 23, 2006
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ameriprise Financial, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell $500,000,000 aggregate principal amount of its 7.518%
Junior Subordinated Notes due 2066 (the "NOTES") to you (the "UNDERWRITERS"),
for whom ▇▇▇▇▇▇ Brothers Inc. is acting as representative (the
"REPRESENTATIVE"). The Notes will (i) have terms and provisions which are
summarized in the Disclosure Package as of the Applicable Time and the
Prospectus dated as of the date hereof (each as defined below) and (ii) are to
be issued pursuant to the Company's junior subordinated indenture dated as of
May 5, 2006, as amended and supplemented by a supplemental indenture to be dated
as of the date of completion of this offering (the "INDENTURE") between the
Company and U.S. Bank National Association, as Trustee (the "TRUSTEE"). This
agreement (this "AGREEMENT") is to confirm the agreement concerning the purchase
of the Notes from the Company by the Underwriters.
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Indenture.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents and warrants to, and agrees with, each Underwriter that:
(a) An "automatic shelf registration statement" (as such term is
defined in Rule 405 under the Securities Act of 1933, as amended (the
"SECURITIES ACT")) on Form S-3 in respect of the Notes (File No. 333-133860)
(the "INITIAL REGISTRATION STATEMENT") (i) has been prepared by the Company in
conformity with the requirements of the Securities Act and the rules and
regulations (the "RULES AND REGULATIONS") of the Securities and Exchange
Commission (the "COMMISSION") thereunder; (ii) has been filed with the
Commission thereunder not earlier than the date that is three years prior to the
Closing Date (as defined in Section 4 hereof); and (iii) is effective under the
Securities Act. Copies of such Initial Registration Statement and any amendment
thereto (excluding exhibits to such Initial Registration Statement but including
all documents incorporated by reference in each prospectus contained therein)
have been delivered by the Company to the Representative; and no other document
with respect to such Initial
Registration Statement or any such document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission. For
purposes of this Agreement,
"APPLICABLE TIME" means 3:45 p.m. (New York City time) on the date of
this Agreement;
"BASE PROSPECTUS" means the base prospectus to be used in connection
with offerings of debt securities, warrants, purchase contracts, units,
preferred stock, depositary shares and common stock of Ameriprise on a
continuous or delayed basis and filed as part of the Registration
Statement, in the form in which it has most recently been amended on or
prior to the date hereof, relating to the Notes;
"EFFECTIVE DATE" means the date as of which any part of the
Registration Statement or any post-effective amendment thereto relating to
the Securities became, or is deemed to have become, effective under the
Securities Act in accordance with the Rules and Regulations (including any
deemed amendment pursuant to Rule 430B);
"ISSUER FREE WRITING PROSPECTUS" means each "free writing prospectus"
(as such term is defined in Rule 405 under the Securities Act), but which
does not include communications not deemed a prospectus pursuant to Rule
134 of the Securities Act and historical issuer information meeting the
requirements of Rule 433(e)(2) of the Securities Act, prepared by or on
behalf of the Company or used or referred to by the Company in connection
with the offering of the Securities, including the final term sheet
prepared pursuant to Section 5(a)(i) hereof and attached to this Agreement
in Schedule II hereto (the "FINAL TERM SHEET");
"PRELIMINARY PROSPECTUS" means any preliminary prospectus relating to
the Securities, including the Base Prospectus and any preliminary
prospectus supplement thereto, included in the Registration Statement or
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations and provided to the Representative for use by the Underwriters;
"DISCLOSURE PACKAGE" means, as of the Applicable Time, the most recent
Preliminary Prospectus, together with each Issuer Free Writing Prospectus
filed or used by the Company on or before the Applicable Time and
identified on Schedule II hereto;
"PROSPECTUS" means the final prospectus relating to the Securities,
including the Base Prospectus and any final prospectus supplement thereto
relating to the Securities, as filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations and provided to the Representative for
use by the Underwriters; and
"REGISTRATION STATEMENT" means, collectively, the various parts of the
Initial Registration Statement, including all exhibits thereto, each as
amended as of the Effective Date for such part, including any Preliminary
Prospectus or the Prospectus and all exhibits to such registration
statement.
Any reference to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Form S-3 under
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the Securities Act as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be. Any reference to the "MOST RECENT
PRELIMINARY PROSPECTUS" shall be deemed to refer to the latest Preliminary
Prospectus included in the Registration Statement or filed pursuant to Rule
424(b) prior to or on the date hereof (including, for purposes hereof, any
documents incorporated by reference therein prior to or on the date
hereof). Any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
document filed under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be deemed to
include any annual report of the Company on Form 10-K filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date that is incorporated by reference in the Registration
Statement.
(b) No stop order suspending the effectiveness of the Registration
Statement has been issued; no proceeding for that purpose has been initiated or
threatened by the Commission; no notice of objection of the Commission to the
form of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company; and no order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission.
(c) The Registration Statement conformed in all material respects on
the Effective Date, and any amendment to the Registration Statement filed after
the date hereof will conform in all material respects when filed, to the
requirements of the Securities Act and the Rules and Regulations. The
Preliminary Prospectus as of the date of its filing with the Commission
conformed, and the Prospectus as of the date of its filing with the Commission
and as of the Closing Date will conform, in all material respects, to the
requirements of the Securities Act and the Rules and Regulations.
(d) The Registration Statement did not, as of the Effective Date,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED that no representation or warranty is made as to
information contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the Company through
the Representative by or on behalf of any Underwriter specifically for inclusion
therein, which information is specified in Section 13, or with respect to any
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act filed as an exhibit thereto.
(e) The Disclosure Package did not, as of the Applicable Time, contain
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, not misleading; PROVIDED that no representation or
warranty is made as to information contained in or omitted from the Registration
Statement in reliance upon and in conformity with written information furnished
to the Company through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified in Section
13, or
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with respect to any Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act filed as an exhibit thereto.
(f) The Prospectus and any amendment or supplement thereto did not, as
of its date, and will not, as of the Closing Date, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED, that no
representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified
in Section 13, or with respect to any Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act filed as an exhibit thereto.
(g) The documents incorporated by reference into the Registration
Statement, the most recent Preliminary Prospectus and the Prospectus, at the
time they were or are filed with the Commission, conform or will conform, as the
case may be, with the requirements of the Securities Act, the Rules and
Regulations and the Exchange Act and the rules and regulations adopted by the
Commission thereunder, and did not or will not, as the case may be, include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein (and in the case of documents
incorporated by reference into the most recent Preliminary Prospectus and the
Prospectus, in light of the circumstances under which they were made) not
misleading.
(h) The Company has been, since the initial filing of the Initial
Registration Statement, and continues to be a "well-known seasoned issuer" and
has not been, since the initial filing of the Initial Registration Statement,
and is not an "ineligible issuer" (as such terms are defined in Rule 405 under
the Securities Act).
(i) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the Registration
Statement, any Preliminary Prospectus and Prospectus fairly present the
financial condition, results of operations, changes in shareholders' equity and
cash flows of the entities purported to be shown thereby at the dates and for
the periods indicated and therein specified, and said financial statements have
been prepared in accordance with generally accepted principles of accounting,
applied on a consistent basis throughout the periods involved (except for
changes in accounting principles or the application thereof with which Ernst &
Young LLP or another independent registered public accounting firm shall have
concurred). Ernst & Young LLP, who examined such financial statements, as set
forth in its reports included or incorporated by reference in the Registration
Statement, any Preliminary Prospectus and Prospectus, is an independent
registered public accounting firm within the meaning of the Securities Act and
the Rules and Regulations. The unaudited consolidated financial statements of
the Company, if any, included or incorporated by reference in the Registration
Statement, any Preliminary Prospectus and Prospectus and the related notes are
true, complete and correct, subject to normally recurring changes resulting from
year-end audit adjustments, and have been prepared in accordance with the
instructions in the Rules and Regulations of the Commission.
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(j) The Company and each of its Significant Subsidiaries (as defined
in Exhibit A hereto) have been duly organized, are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and in good standing as foreign organizations in
each jurisdiction in which their respective ownership of property or the conduct
of their respective businesses requires such qualification (except where the
failure so to qualify would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), results of
operations, properties, business or prospects of the Company and its
Subsidiaries taken as a whole (a "MATERIAL ADVERSE EFFECT")), and have the
organizational power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged.
(k) Since the date as of which information is given in the most recent
Preliminary Prospectus, except as described in the most recent Preliminary
Prospectus and the Prospectus, there has not been any material adverse change
in, or adverse development which, individually or in the aggregate, has had or
would have a Material Adverse Effect.
(l) Neither (i) the execution or delivery hereof by the Company, (ii)
the consummation of the transactions contemplated hereby, (iii) the execution
and delivery of the Indenture and the Notes by the Company nor (iv) compliance
by the Company with all of the provisions of this Agreement, the Indenture and
the Notes, will conflict with or result in a breach or violation of, or
constitute a default under, the certificate of incorporation, by-laws,
partnership agreement or other governing documents of the Company or any of its
Subsidiaries, or any agreement, indenture or other instrument to which the
Company or any of its Subsidiaries is a party or by which any of them is bound,
or to which any of their properties is subject, nor will any such action or the
performance by the Company of its obligations hereunder violate any law, rule,
administrative regulation or decree of any court, or any governmental agency or
body having jurisdiction over the Company, its Subsidiaries or any of their
respective properties, or result in the creation or imposition of any lien,
charge, claim or encumbrance upon any property or asset of the Company or any of
its Subsidiaries, except as in each case would not have a Material Adverse
Effect. Except for permits, consents, approvals and similar authorizations
required under the securities or "Blue Sky" laws of certain jurisdictions, and
except for such permits, consents, approvals and authorizations which have been
obtained, no permit, consent, approval, authorization or order of any court,
governmental agency or body or financial institution is required in connection
with the consummation of the transactions contemplated by this Agreement.
(m) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the Company, and
is enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(n) None of the Company or any of its Significant Subsidiaries (i) is
in violation of its certificate of incorporation or bylaws or other governing
documents, (ii) is in default and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any agreement,
indenture or other instrument to which it is a party or by which it is
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bound or to which any of its properties is subject, except for any such defaults
that would not, individually or in the aggregate, have a Material Adverse
Effect, or (iii) is in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property may be subject, except
for any such violations that would not, individually or in the aggregate, have a
Material Adverse Effect.
(o) The Indenture has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Indenture (i) has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), (ii) complies as to form with the requirements of the Trust
Indenture Act and (iii) conforms to the description thereof in the Registration
Statement, the most recent Preliminary Prospectus and the Prospectus.
(p) The Notes have been duly and validly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement and, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
free of any preemptive or similar rights to subscribe to or purchase the same
arising by operation of law or under the charter or by-laws of the Company or
otherwise, and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
and the Notes conform, or will conform, to the description thereof in the
Registration Statement, the Disclosure Package and the Prospectus. Neither the
filing of the Registration Statement nor the offering or sale of the Notes as
contemplated by this Agreement gives rise to any rights, other than those which
have been duly waived or satisfied, for or relating to the registration of any
securities of the Company. The capitalization of the Company as of the date of
the most recent balance sheet included or incorporated by reference in the most
recent Preliminary Prospectus is as set forth in the most recent Preliminary
Prospectus and the Prospectus. The Company has all requisite corporate power and
authority to issue, sell and deliver the Notes in accordance with and upon the
terms and conditions set forth in this Agreement and in the Registration
Statement, the Disclosure Package and the Prospectus. All corporate action
required to be taken by the Company for the authorization, issuance, sale and
delivery of the Notes to be sold by the Company hereunder has been validly and
sufficiently taken.
(q) There is no litigation or legal or governmental proceeding 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 or which is pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries that could, individually or in the aggregate, result in a Material
Adverse Effect or which is required to be disclosed in the most recent
Preliminary Prospectus and the Prospectus and is not disclosed.
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(r) Neither the Company nor any of its Subsidiaries has taken,
directly or indirectly, any action designed to cause or result in, or which
might reasonably be expected to cause or result in, the stabilization or
manipulation of the price of the Notes to facilitate the sale or resale of the
Notes.
(s) The Company is not, nor after giving effect to the offering of the
Notes and the application of the proceeds therefrom as described under "Use of
Proceeds" in each of the most recent Preliminary Prospectus and the Prospectus
will be, an "investment company" or subject to regulation as an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 ACT").
(t) 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
with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith.
(u) Each of the Company and its subsidiaries maintains a system of
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 statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect thereto.
(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 in (x) providing reasonable assurance that
material information required to be disclosed by the Company in the reports that
the Company is required to file and submit under the Exchange Act is recorded,
processed, summarized and reported as and when required, and (y) providing
reasonable assurance that material information required to be disclosed by the
Company in the reports that it files or submits under Exchange Act is
accumulated and communicated to management, including the Company's principal
executive officer and principal financial officer, as appropriate, to allow
timely decisions regarding required disclosure.
(w) The Company possesses all licenses, certificates, permits and
other authorizations issued by the appropriate national and local U.S. federal
and state regulatory authorities necessary to conduct its businesses, except to
the extent that the failure to possess any such licenses, permits or other
authorizations will not have a Material Adverse Effect on the current or future
financial position or results of operations of the Company, and the Company has
not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, permit or other authorization
that, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect on the current or future
financial position or results of operations of the Company, except as set forth
in or as contemplated by the Preliminary Prospectus or the Prospectus.
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2. PURCHASE OF THE NOTES BY THE UNDERWRITERS. Subject to the terms and
conditions and upon the basis of the representations and warranties herein set
forth, the Company agrees to issue and sell to the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a price equal to 99% of the principal amount thereof, plus accrued interest, if
any, from May 26, 2006, the principal amount of the Notes set forth opposite
such Underwriter's name in Schedule I hereto, provided, however, that the total
principal amount of Notes to be purchased by all Underwriters shall be the total
principal amount of Notes set forth in Schedule I. The Company shall not be
obligated to deliver any of the Notes, except upon payment for all the Notes to
be purchased on the Closing Date as provided herein. Upon authorization by the
Representative of the release of the Notes, the Underwriters propose to offer
the Notes to the public as set forth in the Prospectus.
3. DELIVERY OF AND PAYMENT FOR NOTES. Delivery of the Notes will be
made at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such place or places as mutually may be
agreed upon by the Company and the Underwriters, at 10:00 A.M., New York City
time, on May 26, 2006 or on such later date not more than three Business Days
after the foregoing date as will be determined by you and the Company (the
"CLOSING DATE").
Delivery of the Notes will be made to you by or on behalf of the
Company against payment of the purchase price therefor by wire transfer of
immediately available funds. Delivery of the Notes will be made through the
facilities of The Depository Trust Company unless you will otherwise instruct.
Delivery of the Notes at the time and place specified in this Agreement is a
further condition to the obligations of each Underwriter.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
each Underwriter that:
(a) The Company will file the Prospectus pursuant to Rule 424(b) of
the Rules and Regulations 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 earlier time as may be required by Rule 424(b). The
Company will notify the Representative promptly of any request by the Commission
for any amendment of or supplement to the Registration Statement or the
Prospectus or for additional information; the Company will prepare and file with
the Commission, promptly upon the request of the Representative, any amendments
or supplements to the Registration Statement or the Prospectus which, in the
opinion of the Representative, may be necessary or advisable in connection with
the distribution of the Notes; and the Company will not file any amendment or
supplement to the Registration Statement or the Prospectus or file any document
under the Exchange Act before the termination of the offering of the Notes by
the Underwriters if such document would be deemed to be incorporated by
reference into the Prospectus, which filing is not consented to by you after
reasonable notice thereof (such consent not to be unreasonably withheld or
delayed). The Company will advise you, promptly when any amendment to the
Registration Statement has been filed or becomes (or is deemed to have become)
effective or any supplement to the Prospectus or any amended Prospectus has been
filed. The Company will prepare one or more final term sheets, containing solely
a description of the Notes, substantially in the form of Schedule I hereto and
approved by the Representative and file such term sheet or term sheets pursuant
to Rule 433(d) under the Securities Act within the time period prescribed by
such Rule. The Company will advise you promptly of the issuance
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by the Commission or any State or other regulatory body of any stop order or
other order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of any Preliminary Prospectus, the Prospectus
or any Issuer Free Writing Prospectus or suspending the qualification of the
Notes for offering or sale in any jurisdiction, of the institution of any
proceedings for any such purpose, or of receipt by the Company from the
Commission of any notice of objection to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules
and Regulations; and the Company will use its best efforts to prevent the
issuance of any stop order or other such order or any such notice of objection
and, if a stop order or other such order is issued or any such notice of
objection is received, to obtain as soon as possible the lifting or withdrawal
thereof.
(b) The Company will furnish to each of you and to counsel for the
Underwriters such number of conformed copies of the Registration Statement, as
originally filed and each amendment thereto (excluding exhibits other than this
Agreement), any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus and all amendments and supplements to any of such documents
(including any document filed under the Exchange Act and deemed to be
incorporated by reference in the Registration Statement, any Preliminary
Prospectus or the Prospectus), in each case as soon as available and in such
quantities as you may from time to time reasonably request.
(c) During the period in which the Prospectus relating to the Notes
(or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and
Regulations) is required to be delivered under the Securities Act, the Company
will comply with all requirements imposed upon it by the Securities Act and by
the Rules and Regulations, as from time to time in force, so far as is necessary
to permit the continuance of sales of or dealings in the Notes as contemplated
by the provisions hereof and by the Prospectus. If during such period any event
occurs as a result of which the Disclosure Package or the Prospectus as then
amended or supplemented would include an 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 then existing, not misleading, or if during such
period it is necessary to amend the Registration Statement or amend or
supplement the Disclosure Package or the Prospectus or file any document to
comply with the Securities Act, the Company will promptly notify you and will,
subject to Section 4(a) hereof, amend the Registration Statement, amend or
supplement the Disclosure Package or the Prospectus, as the case may be, or file
any document (in each case, at the expense of the Company) so as to correct such
statement or omission or to effect such compliance, and will furnish without
charge to each Underwriter as many written and electronic copies of any such
amendment or supplement as the Representative may from time to time reasonably
request.
(d) As soon as practicable, the Company will make generally available
to its security holders and the Underwriters an earnings statement satisfying
the requirements of Section 11(a) of the Securities Act and Rule 158 of the
Rules and Regulations.
(e) Whether or not this Agreement becomes effective or is terminated
or the sale of the Notes to the Underwriters is consummated, the Company will
pay or cause to be paid (A) all fees and expenses (including, without
limitation, all registration and filing fees and fees and expenses of the
Company's accountants but excluding fees and expenses of counsel for the
Underwriters) incurred in connection with the preparation, printing, filing,
delivery and shipping of the Registration Statement (including the financial
statements therein and all amendments and
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exhibits thereto), each Preliminary Prospectus, the Prospectus, any Issuer Free
Writing Prospectus, the Statement of Eligibility and Qualification of the
Trustee on Form T-1 filed with the Commission (the "FORM T-1") and any
amendments or supplements of the foregoing and any documents incorporated by
reference into any of the foregoing, (B) all fees and expenses incurred in
connection with the preparation and delivery to the Underwriters of the Notes
(including the cost of printing the Notes), (C) the cost of printing, producing,
copying and delivering this Agreement, the Indenture, closing documents
(including any compilations thereof) and any other agreements, memoranda,
correspondence and other documents printed and delivered in connection with the
offering, purchase, sale and delivery of the Notes (but not, however, legal fees
and expenses of counsel to the Underwriters incurred in connection with any of
the foregoing), (D) all filing fees and other expenses incurred in connection
with the qualification of the Notes under the securities laws of the several
jurisdictions as provided in Section 4(j) and the preparation, printing and
distribution of a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters), (E) any fees required to be paid to rating
agencies incurred in connection with the rating of the Notes, (F) the fees,
costs and charges of the Trustee and any agent of the Trustee, including the
fees and disbursements of counsel for the Trustee, (G) the filing fees incident
to, and the reasonable fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Notes, and (H) all other costs and
expenses incident to the performance of its obligations hereunder for which
provision is not otherwise made in this Section. It is understood, however,
that, except as provided in this Section 4(e), Section 8 and Section 10 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel and any advertising expenses incurred in connection with
any offers they may make. If the sale of the Notes provided for herein is not
consummated by reason of acts of the Company or changes in circumstances of the
Company pursuant to Section 10 hereof which prevent this Agreement from becoming
effective, or by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed or because any
other condition of the Underwriters' obligations hereunder is not fulfilled or
if the Underwriters will decline to purchase the Notes for any reason permitted
under this Agreement (other than by reason of a default by any of the
Underwriters pursuant to Section 10 or if the Underwriters terminate this
Agreement under Section 10(a) of this Agreement), the Company will reimburse the
several Underwriters for all reasonable out-of-pocket disbursements (including
reasonable fees and disbursements of counsel) incurred by the Underwriters in
connection with any investigation or preparation made by them in respect of the
marketing of the Notes or in contemplation of the performance by them of their
obligations hereunder.
(f) Until termination of the offering of the Notes, the Company will
timely file all documents and amendments to previously filed documents required
to be filed by it pursuant to Section 12, 13, 14 or 15(d) of the Exchange Act.
(g) The Company will apply the net proceeds from the sale of the Notes
as set forth in the Prospectus.
(h) The Company will pay the required Commission filing fees relating
to the Notes within the time period required by Rule 456(b)(1) of the Rules and
Regulations without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the Rules and Regulations.
10
(i) If required by Rule 430B(h) of the Rules and Regulations, the
Company will prepare a prospectus in a form approved by the Representative and
to file such prospectus pursuant to Rule 424(b) of the Rules and Regulations not
later than may be required by such Rule; and the Company will make no further
amendment or supplement to such prospectus that will be disapproved by the
Representative promptly after reasonable notice thereof.
(j) The Company will cooperate with the Underwriters and with their
counsel in connection with the qualification of the Notes for offering and sale
by the Underwriters and by dealers under the securities laws of such
jurisdictions as the Underwriters may designate and will file such consents to
service of process or other documents necessary or appropriate in order to
effect such qualification and 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 Notes; PROVIDED, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to service of process in
suits, other than those arising out of the offering or sale of the Notes, in any
jurisdiction where it is not now so subject.
(k) The Company will not take, directly or indirectly, any action
designed to cause or result in, or that might reasonably be expected to cause or
result in, stabilization or manipulation of the price of the Notes to facilitate
the sale or resale of the Notes.
(l) The Company agrees to comply with all the terms and conditions of
all agreements set forth in the representation letter of the Company to DTC
relating to the approval of the Securities by DTC for "book entry" transfer.
(m) For the period beginning the date of this Agreement through the
Closing Date, the Company will not, without the prior written consent of the
Representative, directly or indirectly, issue, sell, offer to sell, grant any
option for the sale of or otherwise dispose of, any securities substantially
similar to the Notes.
5. FREE WRITING PROSPECTUSES.
(a) The Company represents and warrants to, and agrees with, the
Underwriters that it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus (other than
the Final Term Sheet) without the prior consent of the Representative; any
Issuer Free Writing Prospectus the use of which has been consented to by the
Representative is listed on Schedule II hereto. The Company will comply with the
requirements of Rule 433 of the Rules and Regulations with respect to any such
Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; any such Issuer Free Writing Prospectus
will not, as of its issue date and through the time the Notes are delivered
pursuant to Section 4 hereof, include any information that conflicts with the
information contained in the Registration Statement, the Disclosure Package and
the Prospectus; and any such Issuer Free Writing Prospectus, when taken together
with the information contained in the Registration Statement, the Disclosure
Package and the Prospectus, did not, as of the Applicable Time, does not and
will not, as of the Closing Date, contain an 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;
provided, that no representation or warranty is made as to information contained
in
11
or omitted from the Prospectus or Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion
therein, which information is specified in Section 13.
(b) Each Underwriter represents and warrants to, and agrees with, the
Company and each other Underwriter that it has not made, and will not make any
offer relating to the Notes that would constitute a "free writing prospectus"
(as such term is defined in Rule 405 under the Securities Act) required to be
filed with the Commission, without the prior consent of the Company and the
Representative.
(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 Representative and, if requested by the Representative,
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.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and
the Closing Date (as if made at the Closing Date), of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof; all filings (including,
without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of
the Rules and Regulations shall have been made, and no such filings will have
been made without the consent of the Representative; no stop order suspending
the effectiveness of the Registration Statement or any amendment or supplement
thereto, preventing or suspending the use of the Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, or suspending the
qualification of the Notes for offering or sale in any jurisdiction shall have
been issued; no proceedings for the issuance of any such order shall have been
initiated or threatened; no notice of objection of the Commission to use the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) of the Rules and Regulations shall have been received by the Company;
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
disclosed to you and complied with to your satisfaction.
(b) No Underwriter shall have been advised by the Company or shall
have discovered and disclosed to the Company that the Registration Statement,
the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or
any amendment or supplement thereto, contains an untrue statement of fact which
in your opinion, or in the opinion of counsel to the Underwriters, is material,
or omits to state a fact which, in your opinion, or in the opinion of counsel to
the Underwriters, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
12
(c) The Underwriters shall have received from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the validity, issuance and sale of the
Notes, the Registration Statement, the Prospectus and the Disclosure Package and
other related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(d) On the Closing Date, you shall have received the opinion
(addressed to the Underwriters) of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for
the Company, dated the Closing Date and in form and substance satisfactory to
the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus;
(ii) The Company has all requisite corporate power and authority to
issue, sell and deliver the Notes in accordance with and upon the terms and
conditions set forth in this Agreement and in the Registration Statement,
the Disclosure Package and the Prospectus;
(iii) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or
at law); and the Indenture has been duly qualified under the Trust
Indenture Act and the rules and regulations thereunder;
(iv) The Notes have been duly authorized and executed by the Company
for issuance and sale to the Underwriters pursuant to this Agreement and,
assuming due authentication of the Notes by the Trustee, upon delivery to
the Underwriters against payment therefor in accordance with the terms of
this Agreement, will have been validly issued and delivered, will be
entitled to the benefits of the Indenture and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
or judicial decisions relating to or affecting creditors' rights generally
and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(v) Neither the execution or delivery of this Agreement nor
consummation of the transactions contemplated hereby will result in a
breach or violation of, or constitute a default under, the certificate of
incorporation or by-laws of the Company, nor will the performance by the
Company of its obligations hereunder violate Applicable Law (as defined
below) or (to the knowledge of such counsel) decree (except that such
counsel need not express an opinion as to federal or state securities or
Blue Sky laws with respect
13
to this subparagraph) of any court or any governmental agency or body
having jurisdiction over the Company, its Subsidiaries or their respective
properties. Except for permits, consents, approvals and similar
authorizations required under the securities or Blue Sky laws of certain
jurisdictions and except for such permits, consents, approvals and
authorizations which have been obtained, no permit, consent, approval,
authorization or order of any court, governmental agency or body or
financial institution is required of the Company pursuant to Applicable Law
for the valid authorization, issuance, sale and delivery of the Notes;
(vi) The Company has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by the
Company;
(vii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings
for that purpose have been instituted or are pending before or threatened
by the Commission, and no notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) of the Rules and Regulations has been received
by the Company;
(viii) The Registration Statement as of the Effective Date, and the
Prospectus as of its date and as of the Closing Date, and any further
amendments or supplements thereto made by the Company as of their
respective issue dates as of the Closing Date, complied as to form in all
material respects with the applicable requirements of the Securities Act
and the Rules and Regulations and the Trust Indenture Act and the rules and
regulations thereunder (the financial statements or notes thereto or other
financial data contained therein or omitted therefrom);
(ix) The statements set forth in the most recent Preliminary
Prospectus and the Prospectus under the caption "Description of the Notes",
insofar as they purport to constitute a summary of the terms of the Notes,
and under the caption "U.S. Federal Income Tax Considerations", insofar as
they purport to describe the provisions of the laws referred to therein,
are accurate and complete in all material respects; and
(x) There are no legal proceedings pending or, to the knowledge of
such counsel, threatened against the Company or any of its Subsidiaries to
which such counsel has given substantive attention or in which such counsel
has been engaged to represent the Company or any of its Subsidiaries that
are required to be disclosed in the Prospectus and are not disclosed.
Such opinion shall also contain a statement that such counsel had
participated in the preparation of the Registration Statement and Prospectus
(but did not participate in the preparation of any of the documents incorporated
by reference therein) and in conferences with officers and other representatives
of the Company, representatives of the independent public accountants of the
Company, representatives of the Representative and counsel for the Underwriters,
at which the contents of the Registration Statement and Prospectus and related
matters were discussed and, although such counsel has not verified, are not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements
14
contained in the Registration Statement or Prospectus (including, in each case,
any document filed under the Exchange Act and incorporated by reference
therein), no facts have come to such counsel's attention that led them to
believe that (i) as of the applicable Effective Date, the Registration Statement
or any amendment thereto (other than the financial statements, the notes and
schedules thereto and the other financial data contained therein or omitted
therefrom, and the exhibits to the Registration Statement, including the Form
T-1, the information provided by the Underwriters as specified in Section 13, as
to which such counsel need express no belief), including in each case any
document filed under the Exchange Act and incorporated by reference therein,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, (ii) as of the Applicable Time, the
Disclosure Package (other than the financial statements, the notes and schedules
thereto and the other financial contained therein, or omitted therefrom, the
information provided by the Underwriters as specified in Section 13, and the
Road Show Presentation of the Company dated as of May 16, 2006, as to which such
counsel need express no belief), including in each case any document filed under
the Exchange Act and incorporated by reference therein, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; or (iii)
as of its date and as of the Closing Date, the Prospectus or any supplement or
amendment thereto (other than the financial statements, the notes and schedules
thereto and the other financial data contained therein or omitted therefrom, and
the information provided by the Underwriters as specified in Section 13, as to
which such counsel need express no belief), including in each case any document
filed under the Exchange Act and incorporated by reference therein, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely, without independent
verification, as to matters of fact, to the extent they deem appropriate, on the
representations of the Company contained herein and on certificates of
responsible officers of the Company and public officials.
Such opinion will be limited to the laws of the State of New York, the
federal securities laws of the United States and the General Corporation Law of
the State of Delaware (collectively, "APPLICABLE LAW"), and such counsel will
express no opinion as to the effect on the matters covered by such opinion of
the laws of any other jurisdiction. Such opinion may also state that such
counsel acted as special counsel to the Company in connection with the offering
of the Notes contemplated hereby and did not act, and has not acted, as the
Company's regular outside counsel.
(e) On the Closing Date, you shall have received the opinion
(addressed to the Underwriters) of General Counsel of the Company, dated the
Closing Date and in form and substance satisfactory to the Underwriters, to the
effect that:
(i) The Company is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business
conducted by it or the location of the properties owned, leased or operated
by it makes such qualification necessary (except where the failure to so
qualify would not, individually or in the aggregate, have a material
15
adverse effect on the condition (financial or other), results of
operations, properties, business or prospects of the Company and its
Subsidiaries taken as a whole);
(ii) Each of the Company's Significant Subsidiaries has been duly
incorporated or formed as a corporation or partnership, as applicable, and
is validly existing as a corporation, a general partnership or a limited
partnership under the laws of its jurisdiction of incorporation or
formation (and each of the Significant Subsidiaries that is a corporation
or a limited partnership is in good standing under the laws of its
jurisdiction of incorporation or formation), with full corporate or
partnership (as applicable) power and authority to own, lease and operate
its properties and conduct its business as described in the Prospectus;
(iii) To the knowledge of such counsel, except as disclosed in the
most recent Preliminary Prospectus and the Prospectus, all of the
outstanding shares of capital stock, partnership interests (or such
percentage of the partnership interest as is set forth in the respective
partnership agreements) or other ownership interests of each Significant
Subsidiary are owned directly or indirectly by the Company, free and clear
of any perfected security interest;
(iv) Neither the execution or delivery of this Agreement nor
consummation of the transactions contemplated hereby will result in a
breach or violation of, or constitute a default under, the certificate of
incorporation, by-laws, partnership agreement or other governing documents
of the Significant Subsidiaries or any agreement, indenture or other
instrument filed as an exhibit to the Registration Statement or any
document incorporated by reference therein;
(v) Neither the filing of the Registration Statement nor the offering
or sale of the Notes as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for or
relating to the registration of any securities of the Company or any of its
Subsidiaries;
(vi) Each document incorporated by reference in the Registration
Statement, the most recent Preliminary Prospectus and the Prospectus as
filed under the Exchange Act complied as to form in all material respects
when so filed with the applicable requirements of the Exchange Act and the
Rules and Regulations (except that no opinion need be expressed as to the
financial statements or notes thereto and other financial data contained
therein); and
(vii) The descriptions in the Registration Statement, the most recent
Preliminary Prospectus and Prospectus of statutes, regulations, legal or
governmental proceedings, to the extent they constitute matters of law and
summaries of legal matters are accurate in all material respects. To the
knowledge of such counsel, there are no contracts or documents required to
be described in the Registration Statement or Prospectus or to be filed as
exhibits thereto which are not described or filed as required.
(f) On the Closing Date, you shall have received a certificate, dated
the Closing Date and addressed to you, signed by the Chairman of the Board or
the President or any Senior Vice President and by the Chief Financial Officer of
the Company to the effect that: (i)
16
the representations and warranties of the Company contained in this Agreement
are true and correct in all material respects, as if made at and as of the
Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be complied with or satisfied at or prior to
the Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceeding for that purpose has been
initiated or, to the best of their knowledge, threatened, no notice of objection
of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has
been received by the Company, and no order preventing or suspending the use of
any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus
has been issued by the Commission; (iii) all filings required by Rule 424(b) or
Rule 433 of the Rules and Regulations have been made; (iv) the signers of such
certificate have carefully examined the Registration Statement and the
Prospectus, and any amendments or supplements thereto (including any documents
filed under the Exchange Act and deemed to be incorporated by reference into the
Prospectus), and do not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; (v) since the Effective Date of the
Initial Registration Statement, there has occurred no event required to be set
forth in an amendment or supplement to the Registration Statement, any
Preliminary Prospectus or the Prospectus which has not been so set forth and
there has been no document required to be filed under the Exchange Act and the
Rules and Regulations that upon such filing would be deemed to be incorporated
by reference into the Registration Statement, any Preliminary Prospectus or the
Prospectus that has not been so filed; and (vi) no event contemplated by Section
6(g) hereof will have occurred.
(g) Since the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereto) and in the most
recent Preliminary Prospectus (exclusive of any supplement thereto filed
subsequent to the date hereof), neither the Company nor any of its Subsidiaries
will have sustained any loss by fire, flood, accident or other calamity, or will
have become a party to or the subject of any litigation, which is materially
adverse to the Company and its Subsidiaries taken as a whole, nor will there
have been a material adverse change in the condition (financial or otherwise),
results of operations, business or prospects of the Company and its Subsidiaries
taken as a whole, regardless of whether arising in the ordinary course of
business, which loss, litigation or change, in the judgement of the
Representative, will render it impractical or inadvisable to proceed with the
payment for and delivery of the Notes.
(h) At the time of execution of this Agreement, the Underwriters shall
have received from Ernst & Young LLP, a letter, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent registered public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
most recent Preliminary Prospectus, as of a date not more than three days prior
to the date hereof), the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(i) With respect to the letter of Ernst & Young LLP referred to in the
preceding paragraph and delivered to the Underwriters concurrently with the
execution of this
17
Agreement (the "INITIAL LETTER"), the Company shall have furnished to the
Underwriters a letter (the "BRING-DOWN LETTER") of such accountants, addressed
to the Underwriters and dated the Closing Date (i) confirming that they are
independent registered public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than three days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the initial letter.
(j) Prior to or on the Closing Date, you shall have been furnished by
the Company such additional documents and certificates as you or counsel for the
Underwriters may reasonably request.
(k) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded to the debt securities of
the Company or any of its Subsidiaries by any "nationally recognized statistical
rating organization" as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations, and (ii) no such organization shall
have publicly announced that it has under surveillance or review with possible
negative implications any such debt securities.
(l) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction; (ii) a banking moratorium shall have been
declared by Federal or state authorities; (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States; or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions, including, without limitation, as a result of terrorist
activities after the date hereof (or the effect of international conditions on
the financial markets in the United States shall be such) as to make it, in the
judgment of the Representative, impracticable or inadvisable to proceed with the
offering or delivery of the Notes being delivered on the Closing Date on the
terms and in the manner contemplated in the Prospectus.
All opinions, certificates, letters and documents referred to in this
Section 6 will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and to counsel for the Underwriters.
The Company will furnish to you conformed copies of such opinions, certificates,
letters and other documents in such number as you will reasonably request. If
any of the conditions specified in this Section 6 are not fulfilled when and as
required by this Agreement, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by you. Any such cancellation will be
18
without liability of the Underwriters to the Company. Notice of such
cancellation will be given to the Company in writing, or by telegraph or
telephone and confirmed in writing.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF UNDERWRITERS. Each
Underwriter, severally and not jointly, agrees with the Company that:
(a) In relation to each Member State of the European Economic Area
(each, a "RELEVANT MEMBER STATE"), it has not made and will not make an offer of
Notes to the public in that Relevant Member State that would require the
publication or approval of a prospectus in relation to the Notes in that
Relevant Member State, or where appropriate, another Relevant Member State;
subject to such restriction, it may make an offer of the Notes to the public in
that Relevant Member State at any time: (i) to legal entities that are
authorized or regulated to operate in the financial markets or, if not so
authorized or regulated, whose corporate purpose is solely to invest in
securities; (ii) to any legal entity that has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a total balance sheet
of more than (euro)43,000,000 and (3) an annual net turnover of more than
(euro)50,000,000, as shown in its last annual or consolidated accounts; or (iii)
in any other circumstances that do not require the publication by the Company of
a prospectus pursuant to Article 3 of the Prospectus Directive.
For purposes of this Section 7(a), the expression an "offer of
Notes to the public" in relation to any Notes in any Relevant Member State means
the communication in any form and by any means of sufficient information on the
terms of the offer and the Notes to be offered so as to enable an investor to
decide to purchase or subscribe for the Notes, as the same may be varied in that
Relevant Member State by any measure implementing the Prospectus Directive in
that Relevant Member State and the expression "Prospectus Directive" means
Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
(b) It will comply with applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Notes, or has in
its possession or distributes any Issuer Free Writing Prospectus, any
Preliminary Prospectus or the Prospectus.
(c) It has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection with
the issue or sale of the Notes in circumstances in which Section 21(1) of the
FSMA does not apply to the Company.
(d) It has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Notes in, from
or otherwise involving the United Kingdom.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Underwriter from and against any loss, claim, damage or
liability (or any action in respect thereof), joint or several, to which such
Underwriter may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage or liability (or action in respect thereof) arises
out of or is based upon (i) any untrue statement or alleged untrue statement
made by the Company in Section 1 hereof, (ii) any untrue statement or alleged
untrue
19
statement of a material fact contained in the Registration Statement (other than
in any Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act filed as an exhibit thereto), any Preliminary Prospectus, the
Prospectus, the Disclosure Package, the Registration Statement or Prospectus as
amended or supplemented, any Issuer Free Writing Prospectus, any "issuer
information" filed or required to be filed pursuant to Rule 433(d) of the Rules
and Regulations, or any "road show" (as defined in Rule 433 of the Rules and
Regulations) that does not otherwise constitute an Issuer Free Writing
Prospectus, or (iii) the omission or alleged omission to state in the
Registration Statement (other than in any Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act filed as an exhibit
thereto), any Preliminary Prospectus, the Prospectus, the Disclosure Package, or
the Registration Statement or Prospectus as amended or supplemented or any
Issuer Free Writing Prospectus, any issuer information or any road show a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse each Underwriter promptly after
receipt of invoices from such Underwriter for any legal or other expenses as
reasonably incurred by such Underwriter in connection with investigating,
preparing to defend or defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments will be promptly refunded;
PROVIDED, HOWEVER, that the Company will not be liable under this Section 8(a)
in any such case to the extent, but only to the extent, that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Representative, on behalf of the Underwriters, expressly for use
in the preparation of the Registration Statement, any Preliminary Prospectus,
the Prospectus, the Disclosure Package, the Registration Statement or Prospectus
as amended or supplemented, or any Issuer Free Writing Prospectus.
(b) Each Underwriter severally, but not jointly, will indemnify and
hold harmless the Company against any loss, claim, damage or liability (or any
action in respect thereof) to which the Company may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage or liability
(or action in respect thereof) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, the
Disclosure Package, the Registration Statement or Prospectus as amended or
supplemented, or any Issuer Free Writing Prospectus, or (ii) the omission or
alleged omission to state in the Registration Statement, any Preliminary
Prospectus, the Prospectus, the Disclosure Package, the Registration Statement
or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus,
a material fact required to be stated therein or necessary to make the
statements therein not misleading and will reimburse the Company promptly after
receipt of invoices from the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating, preparing to defend or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments will be promptly refunded; PROVIDED, HOWEVER, that such
indemnification or reimbursement will be available in each such case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
20
reliance upon and in conformity with written information furnished to the
Company by the Representative, on behalf of such Underwriter, expressly for use
therein.
(c) Promptly after receipt by any indemnified party under Section 8(a)
or 8(b) above of notice of any claim or the commencement of any action, the
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to so notify the indemnifying party will not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been prejudiced in any material respect by such failure or from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action will be brought against any indemnified party, and
it will notify the indemnifying party thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party will not be liable to
the indemnified party under Section 8(a) or 8(b) above for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; except that the
Underwriters will have the right to employ a single counsel to represent all of
the Underwriters (and to the extent necessary, a single local counsel in each
jurisdiction in which proceedings have been brought) who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company under such subsection if (i) the
employment thereof has been specifically authorized by the Company in writing,
(ii) the Underwriters will have been advised by counsel that there may be one or
more legal defenses available to the Underwriters which are different from or
additional to those available to the Company and in the reasonable judgment of
such counsel it is advisable for the Underwriters to employ separate counsel or
(iii) the Company has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the Underwriters, in which event the fees and
expenses of such separate counsel will be paid by the Company. No indemnifying
party will (i) without the prior written consent of the indemnified parties
(which consent will not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without its
written consent (which consent will not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a) or 8(b) above, then each indemnifying party will, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in Section 8(a) or 8(b) above (i) in such proportion as is
appropriate to
21
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand will be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. Relative fault will be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this Section
8(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to in the first
sentence of this Section 8(d) will be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating, preparing to defend or defending against any action or claim
which is the subject of this Section 8(d). Notwithstanding the provisions of
this Section 8(d), no Underwriter will be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten by
it and distributed to investors were offered to investors exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this Section 8(d) to contribute are several in proportion to
their respective underwriting obligations and not joint. Each party entitled to
contribution agrees that upon the service of a summons or other initial legal
process upon it in any action instituted against it in respect to which
contribution may be sought, it will promptly give written notice of such service
to the party or parties from whom contribution may be sought, but the omission
so to notify such party or parties of any such service will not relieve the
party from whom contribution may be sought for any obligation it may have
hereunder or otherwise (except as specifically provided in Section 8(c) above).
(e) The obligations of the Company under this Section 8 will be in
addition to any liability that the Company may otherwise have, and will extend,
upon the same terms and conditions set forth in this Section 8, to the
respective officers and directors of the Underwriters and each person, if any,
who controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section 8 will be in addition to any
liability that the respective Underwriters may otherwise have, and will extend,
upon the same terms and conditions, to each director of the Company (including
any person who, with his or her consent,
22
is named in the Registration Statement as about to become a director of the
Company), to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Securities Act.
9. SUBSTITUTION OF UNDERWRITERS. If any Underwriter defaults in its
obligation to purchase the principal amount of the Notes which it has agreed to
purchase under this Agreement, the non-defaulting Underwriters will be obligated
to purchase (in the respective proportions which the principal amount of the
Notes set forth opposite the name of each non-defaulting Underwriter in Schedule
I hereto bears to the total principal amount of the Notes less the principal
amount of the Notes the defaulting Underwriter agreed to purchase set forth in
Schedule I hereto) the principal amount of the Notes which the defaulting
Underwriter agreed but failed to purchase; except that the non-defaulting
Underwriters will not be obligated to purchase any of the Notes if the total
principal amount of the Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase exceed 9.09% of the total principal amount of the
Notes, and any non-defaulting Underwriters will not be obligated to purchase
more than 110% of the principal amount of the Notes set forth opposite its name
in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting
Underwriters, and any other underwriters satisfactory to you who so agree, will
have the right, but will not be obligated, to purchase (in such proportions as
may be agreed upon among them) all of the Notes. If the non-defaulting
Underwriters or the other underwriters satisfactory to the Underwriters do not
elect to purchase the Notes that the defaulting Underwriter or Underwriters
agreed but failed to purchase within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except for the indemnity and contribution agreements of the
Company and the Underwriters contained in Section 8 hereof. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter pursuant to this Section 9.
Nothing contained herein will relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If the non-defaulting
Underwriters or the other underwriters satisfactory to you are obligated or
agree to purchase the Notes of a defaulting Underwriter, the Representative may
postpone the Closing Date for up to seven full Business Days in order to effect
any changes that may be necessary in the Registration Statement or the
Prospectus or in any other document or agreement, and to file promptly any
amendments or any supplements to the Registration Statement, the Disclosure
Package or the Prospectus which in the opinion of the Representative may thereby
be made necessary.
10. TERMINATION. Until the Closing Date, this Agreement may be
terminated by you by giving notice as hereinafter provided to the Company if (a)
the Company will have failed, refused or been unable, at or prior to the Closing
Date, to perform any agreement on its part to be performed hereunder; (b) any of
the events described in Sections 6(k) and 6(l), shall have occurred; or (c) any
other condition to the Underwriters' obligations hereunder is not fulfilled. Any
termination of this Agreement pursuant to this Section 10 will be without
liability on the part of the Company or any Underwriter, except as otherwise
provided in Sections 4(e) and 8 hereof.
Any notice referred to above may be given at the address specified in
Section 12 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, will be immediately confirmed in writing.
23
11. SURVIVAL OF CERTAIN PROVISIONS. The agreements contained in
Section 8 hereof and the representations, warranties and agreements of the
Company contained in Sections 1 and 4 hereof will survive the delivery of the
Notes to the Underwriters hereunder and will remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
12. NOTICES. Except as otherwise provided in the Agreement, (a)
whenever notice is required by the provisions of this Agreement to be given to
the Company, such notice will be in writing or by telegraph addressed to the
Company at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Fax
(▇▇▇)▇▇▇-▇▇▇▇, Attention: General Counsel, and (b) whenever notice is required
by the provisions of this Agreement to be given to the several Underwriters,
such notice will be in writing or by telegraph addressed to you in care of
▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Debt
Capital Markets, Financial Institutions Group (with a copy to the General
Counsel at the same address).
13. INFORMATION FURNISHED BY UNDERWRITERS. The Underwriters severally
confirm that the information appearing in the list of names of, and principal
amount of Notes to be purchased by, each of the Underwriters, the third
paragraph and the statements set forth under the caption "Price Stabilization
and Short Positions" under the caption "Underwriting" in the most recent
Preliminary Prospectus and in the Prospectus constitute the only written
information furnished to the Company by the Representative on behalf of the
Underwriters, referred to in Sections 1(d), 1(e), 1(f), 8(a) and 8(b) hereof.
14. RESEARCH ANALYST INDEPENDENCE. The Company acknowledges that the
Underwriters' research analysts and research departments are required to be
independent from their respective investment banking divisions and are subject
to certain regulations and internal policies, and that such Underwriters'
research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company
and/or the offering that differ from the views of their respective investment
banking divisions. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters
with respect to any conflict of interest that may arise from the fact that the
views expressed by their independent research analysts and research departments
may be different from or inconsistent with the views or advice communicated to
the Company by such Underwriters' investment banking divisions. The Company
acknowledges that each of the Underwriters is a full service securities firm and
as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long
or short positions in debt or equity securities of the companies that may be the
subject of the transactions contemplated by this Agreement.
14. NO FIDUCIARY DUTY. The Company acknowledges and agrees that in
connection with the offering and the sale of the Notes or any other services the
Underwriters may be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company and
any other person, on the one hand, and the Underwriters, on the other hand,
exists; (ii) the Underwriters are not acting as advisors, expert or otherwise,
to the Company, including, without limitation, with respect to the determination
of the public offering price of the Notes, and such relationship between the
Company, on the one hand, and the Underwriters, on the other hand, is entirely
and
24
solely commercial, based on arms-length negotiations; (iii) any duties and
obligations that the Underwriters may have to the Company shall be limited to
those duties and obligations specifically stated herein; and (iv) the
Underwriters and their respective affiliates may have interests that differ from
those of the Company. The Company hereby waives any claims that the Company may
have against the Underwriters with respect to any breach of fiduciary duty in
connection with this offering.
15. PARTIES. This Agreement will inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement will also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Securities Act and (b)
the indemnity agreement of the Underwriters contained in Section 8 hereof will
be deemed to be for the benefit of directors of the Company, officers of the
Company who signed the Registration Statement and any person controlling the
Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement will be construed to give any person, other than the persons referred
to in this paragraph, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
16. DEFINITION OF "BUSINESS DAY" AND "SUBSIDIARY." For purposes of
this Agreement, (a) "Business Day" means any day on which the NYSE is open for
trading, other than any day on which commercial banks are authorized or required
to be closed in New York City, and (b) "Subsidiary" has the meaning set forth in
Rule 405 under the Securities Act and includes both partnerships and
corporations.
17. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
19. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which will constitute an original and all of which
together will constitute one and the same agreement.
25
Please confirm, by signing and returning to us two counterparts of
this Agreement, that you are acting on behalf of yourselves and the several
Underwriters and that the foregoing correctly sets forth the Agreement between
the Company and the several Underwriters.
Very truly yours,
AMERIPRISE FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President and Treasurer
-----------------------------------
Confirmed and accepted as of
the date first above mentioned
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Title: Senior Vice President
-------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: Vice President
-------------------------
SCHEDULE I
Underwriting Agreement dated May 23, 2006
PRINCIPAL AMOUNT OF NOTES TO BE
UNDERWRITER PURCHASED
----------- ---------
▇▇▇▇▇▇ Brothers Inc...................................$350,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.............................150,000,000
------------
Total.................................................$500,000,000
============
SCHEDULE II
TERM SHEET FOR AMERIPRISE FINANCIAL, INC.
7.518% JUNIOR SUBORDINATED NOTES DUE 2066
ISSUER: Ameriprise Financial, Inc. (NYSE Symbol: AMP)
SECURITIES: 7.518% Junior Subordinated Notes due 2066
LEGAL FORMAT: SEC Registered
AMOUNT: $500,000,000
CUSIP: 03076C AC 0
RATINGS: (1) ▇▇▇▇▇'▇ Investors Service: Baa2
Standard & Poor's: BBB
Fitch: BBB+
A.M. Best: bbb
SETTLEMENT DATE: May 26, 2006 (T+3)
MATURITY DATE: June 1, 2066
FIXED RATE PERIOD: 7.518% coupon paid semi-annually in arrears until June 1, 2016,
payable on June 1 and December 1, commencing December 1, 2006,
subject to Company's right to defer
FLOATING RATE PERIOD: From June 1, 2016, at a floating rate of 3-month LIBOR
(Telerate Page 3750) plus a margin of 290.5 basis points,
payable quarterly in arrears on March 1, June 1, September 1
and December 1, subject to Company's right to defer
BENCHMARK TREASURY RATE: 5.068% (UST 5.125% due May 15, 2016)
SPREAD TO BENCHMARK TREASURY: 245 basis points (2.450%)
DAY COUNT CONVENTION: 30/360 (fixed rate period), Actual/360 (floating rate period)
REDEMPTION AT PAR: First call date of June 1, 2016 and thereafter
MAKE-WHOLE CALL FOR TAX EVENT: Discounted present value of Treasury plus 50 basis points
MAKE-WHOLE CALL FOR OTHER REASON: Discounted present value of Treasury plus 40 basis points
PUBLIC OFFERING PRICE: $1,000
NET PROCEEDS AFTER EXPENSES TO AMERIPRISE: $494,000,000
SHARE CAP: 55,000,000 shares of common stock of Ameriprise Financial, Inc.
DENOMINATIONS: $1,000
STRUCTURING ADVISOR: ▇▇▇▇▇▇ Brothers Inc.
JOINT BOOKRUNNERS: ▇▇▇▇▇▇ Brothers Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc.
ALLOCATION: PRINCIPAL AMOUNT
-------------------------
▇▇▇▇▇▇ BROTHERS INC. $ 350,000,000
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. 150,000,000
-------------------------
TOTAL $ 500,000,000
(1) An explanation of the significance of ratings may be obtained from the
rating agencies. Generally, rating agencies base their ratings on such material
and information, and such of their own investigations, studies and assumptions,
as they deem appropriate. The rating of the notes should be evaluated
independently from similar ratings of other securities. A credit rating of a
security is not a recommendation to buy, sell or hold securities and may be
subject to review, revision, suspension, reduction or withdrawal at any time by
the assigning rating agency.
OTHER INFORMATION
As adjusted to give effect to this offering, as of March 31, 2006
Ameriprise and its subsidiaries would have had $2,421 million in total short-
and long-term debt (including non-recourse debt) and $9,762 million of total
capitalization (including non-recourse debt) on a consolidated basis.
On May 16, 2006, the Company filed a Current Report on Form 8-K
pursuant to Item 8.01 of such Form, which is incorporated by reference into the
Prospectus Supplement. On May 17, 2006, the Company amended such report.
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS)
WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE "SEC") FOR THIS OFFERING.
BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS FOR THIS OFFERING IN THAT
REGISTRATION STATEMENT, AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE SEC
FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THIS OFFERING. YOU MAY GET
THESE DOCUMENTS FOR FREE BY SEARCHING THE SEC ONLINE DATABASE (▇▇▇▇▇(R)) AT
▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, YOU MAY OBTAIN A COPY OF THE PROSPECTUS FROM ▇▇▇▇▇▇
BROTHERS INC. BY CALLING ▇▇▇-▇▇▇-▇▇▇▇ OR ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. BY CALLING
COLLECT ▇▇▇-▇▇▇-▇▇▇▇.
OTHER ISSUER FREE WRITING PROSPECTUSES
Road Show Presentation by the Company Related to the Offering of Junior
Subordinated Notes due 2066 dated as of May 2006
EXHIBIT A
Underwriting Agreement dated May 23, 2006
As used in the Underwriting Agreement, the "Significant Subsidiaries" of the
Company are as follows and include any one or more subsidiaries of the Company
that shall succeed to all or substantially all of the business of any of the
following subsidiaries or succeed to the ownership of all or substantially all
of the property and assets of any of the following subsidiaries:
American Enterprise Investment Services, Inc.
Ameriprise Certificate Company
Ameriprise Financial Services, Inc.
IDS Life Insurance Company
IDS Property Casualty Insurance Company
Threadneedle Asset Management Holdings Ltd.
RiverSource Investments, LLC