Exhibit 1.1
-----------
16,500,000 Shares
METAVANTE CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
__________, 2000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
UBS WARBURG
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
DLJDIRECT INC.
As representatives of the several
Underwriters named in Schedule I hereto
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Metavante Corporation, a Wisconsin corporation (the "Company") and wholly
owned subsidiary of ▇▇▇▇▇▇▇▇ & Ilsley Corporation, a Wisconsin corporation
("M&I"), proposes to issue and sell 16,500,000 shares (the "Firm Shares") of its
common stock, $.01 par value ("Common Stock") to the several underwriters named
in Schedule I hereto (the "Underwriters"). The Company also proposes to issue
and sell to the several Underwriters not more than an additional 2,475,000
shares (the "Additional Shares") of its Common Stock if requested by the
Underwriters as provided in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter referred to collectively as the "Shares."
The Shares are being issued and sold pursuant to a Reorganization Agreement
dated as of July 13, 2000 (the "Reorganization Agreement") between M&I and the
Company. The relationship between, and the obligations of, the Company and its
subsidiaries, on the one hand, and M&I and its subsidiaries, on the other, will
be governed by the Registration Rights Agreement, the General Assignment and
Assumption Agreement, the Tax Sharing Agreement, the Employee Matters Agreement,
the Lease Agreement, the Administrative Services Agreement, the Outsourcing
Agreement, the Professional Services Agreement, the Banking Services Agreement
and any other agreements between the Company and its subsidiaries, on the
1
one hand, and M&I and its subsidiaries, on the other hand, which may be listed
as exhibits to the Registration Statement (as defined herein) (together with the
Reorganization Agreement, the "Transaction Documents"), each in the form
described in the Registration Statement and the Prospectus (as defined herein).
Each of the Company and M&I hereby confirms its agreements with the
Underwriters as follows.
Section 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1, including a
prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is hereinafter referred to as the "Registration Statement;"
and the prospectus in the form first used to confirm sales of Shares is
hereinafter referred to as the "Prospectus." If the Company has filed or is
required pursuant to the terms hereof to file a registration statement pursuant
to Rule 462(b) under the Act registering additional shares of Common Stock (a
"Rule 462(b) Registration Statement"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462(b) Registration Statement.
Section 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company at a price per Share of $______ (the "Purchase
Price"), the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company also agrees to
issue and sell to the Underwriters, and the Underwriters shall have the right,
severally and not jointly, to purchase from the Company at the Purchase Price,
up to 2,475,000 Additional Shares. Additional Shares may be purchased solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. The Underwriters may exercise their right to purchase
Additional Shares in whole or in part, at any time and from time to time, by
giving written notice thereof to the Company within 30 days after the date of
this Agreement. DLJ (as hereinafter defined) and CSFBC (as hereinafter defined)
shall give any such notice on behalf of the Underwriters and such notice shall
specify the aggregate number of Additional Shares to be purchased pursuant to
such exercise and the date for payment and delivery thereof, which date shall be
a business day (i) no earlier than two business days after such notice has been
given (and, in any event, no earlier than the Closing Date (as hereinafter
defined)) and (ii) no later than ten business days after such notice has been
given. If any Additional Shares are to be purchased, each Underwriter, severally
and not jointly, agrees to purchase from the Company the number of Additional
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased from the Company as the
2
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Firm Shares.
Each of the Company and M&I hereby agrees not to (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other arrangement that transfers all
or a portion of the economic consequences associated with the ownership of any
Common Stock (regardless of whether any of the transactions described in clause
(i) or (ii) is to be settled by the delivery of Common Stock, or such other
securities, in cash or otherwise), except to the Underwriters pursuant to this
Agreement, for a period of 180 days after the date of the Prospectus without the
prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
("DLJ") and Credit Suisse First Boston Corporation ("CSFBC"). Notwithstanding
the foregoing, during such period (i) the Company may grant stock options
pursuant to the Company's existing stock option plan as described in the
Prospectus and, in the event the vesting of any such option is accelerated in
accordance with the terms of such stock option plan as in effect on the date
hereof, the Company may issue shares of Common Stock upon the exercise of such
option, (ii) the Company may issue shares of Common Stock upon the exercise of
an option or warrant or the conversion of a security outstanding on the date
hereof and (iii) M&I may distribute shares of Common Stock to holders of M&I
common stock (and securities convertible into or exchangeable for M&I common
stock) as contemplated by the Prospectus. The Company also agrees not to file
any registration statement with respect to any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock for
a period of 180 days after the date of the Prospectus without the prior written
consent of DLJ and CSFBC, except for a registration statement on Form S-8 with
respect to the Company's stock option plan as described in the Prospectus. The
Company shall, prior to or concurrently with the execution of this Agreement,
deliver an agreement executed by each of the directors and executive officers of
the Company and each of the directors and executive officers of M&I to the
effect that such person will not, during the period commencing on the date such
person signs such agreement and ending 180 days after the date of the
Prospectus, without the prior written consent of DLJ and CSFBC, (A) engage in
any of the transactions described in the first sentence of this paragraph or (B)
make any demand for, or exercise any right with respect to, the registration of
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
As part of the offering contemplated by this Agreement, DLJ has agreed to
reserve, of the Shares set forth opposite its name on Schedule I, up to
825,000 Shares for sale to the Company's employees, officers and directors and
other parties associated with the Company (collectively, "Participants"), as set
forth in the Prospectus under the caption "Underwriting" (the "Directed Share
Program"). The Shares to be sold by DLJ pursuant to the Directed Share Program
(the "Directed Shares") will be sold by DLJ pursuant to this Agreement at the
public offering price. Any Directed Shares not orally confirmed for purchase by
any Participant by the end of the business day on which this Agreement is
executed will be offered to the public by DLJ as set forth in the Prospectus.
3
Section 3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
Section 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as DLJ and CSFBC shall request no later than two
business days prior to the Closing Date or the applicable Option Closing Date
(as defined below), as the case may be. The Company shall deliver the Shares,
with any transfer taxes thereon duly paid by the Company, to DLJ and CSFBC
through the facilities of The Depository Trust Company ("DTC"), for the
respective accounts of the several Underwriters, against payment to the Company
of the Purchase Price therefor by wire transfer of Federal or other funds
immediately available in New York City. The certificates representing the Shares
shall be made available for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date or the applicable
Option Closing Date, as the case may be, at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of delivery and payment
for the Firm Shares shall be 9:00 A.M., New York City time, on ___________, 2000
or such other time on the same or such other date as DLJ, CSFBC and the Company
shall agree in writing. The time and date of delivery for the Firm Shares are
hereinafter referred to as the "Closing Date." The time and date of delivery and
payment for any Additional Shares to be purchased by the Underwriters shall be
9:00 A.M., New York City time, on the date specified in the applicable exercise
notice given by you pursuant to Section 2 or such other time on the same or such
other date as DLJ, CSFBC and the Company shall agree in writing. The time and
date of delivery for any Additional Shares are hereinafter referred to as an
"Option Closing Date."
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 8 of this Agreement
shall be delivered at the offices of Sidley & Austin, Bank One Plaza, ▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the Shares shall be delivered at
the Designated Office, all on the Closing Date or such Option Closing Date, as
the case may be.
Section 5. Agreements of the Company. Each of the Company and, other than
with respect to Sections 5(g), 5(h), 5(k) and 5(n), M&I, jointly and severally,
agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or which
requires any additions to or changes in the Registration
4
Statement or the Prospectus (as then amended or supplemented) in order to state
a material fact required by the Act to be stated therein or in order to make the
statements therein not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, the
Company will use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(b) To furnish to you, without charge, six signed copies (which may be
copies of original signatures) of the Registration Statement as first filed with
the Commission and of each amendment to it, including all exhibits thereto, and
to furnish to you and each Underwriter designated by you, without charge, such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer, without
charge, as many copies of the Prospectus (and of any amendment or supplement to
the Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of
5
such jurisdictions as you may request, to continue such registration or
qualification in effect so long as required for distribution of the Shares and
to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that the Company shall not be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general consent to
service of process or taxation other than as to matters and transactions
relating to the Prospectus, the Registration Statement, any preliminary
prospectus or the offering or sale of the Shares, in any jurisdiction in which
it is not now so subject.
(g) To make generally available to its stockholders, as soon as
practicable, an earnings statement covering the twelve-month period ending
__________, 2001 that shall satisfy the provisions of Section 11(a) of the Act,
and to advise you in writing when such statement has been so made available;
provided, however, that compliance by the Company with Rule 158 under the Act
shall satisfy the requirements of this paragraph (g).
(h) During the period of three years after the date of this Agreement, to
furnish to you, as soon as available, copies of all reports or other
communications furnished by the Company to the record holders of Common Stock or
furnished to or filed with the Commission, the Nasdaq National Market or any
national securities exchange on which any class of securities of the Company is
listed, and such other publicly available information concerning the Company and
its subsidiaries as you may reasonably request. The Company's obligations under
this paragraph (h) shall be deemed satisfied by (i) filing such report or
communication electronically with the Commission or (ii) making such report
available on the Company's website.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of its counsel and the
Company's accountants in connection with the registration and delivery of the
Shares under the Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) all costs of printing (or reproducing) and
distributing this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Shares, (iv) all expenses
in connection with the registration or qualification of the Shares for offer and
sale under the state securities or Blue Sky laws of the several jurisdictions as
provided in Section 5(f), and all costs of printing (or reproducing) and
distributing any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), which fees shall not exceed $10,000 without the
prior consent of the Company, (v) the filing fees and disbursements of counsel
for the Underwriters in connection with the review and clearance of the offering
of the Shares by the National Association of Securities Dealers, Inc. ("NASD"),
(vi) all fees and expenses in
6
connection with the preparation and filing of the registration statement on Form
8-A relating to the Common Stock and all costs and expenses incident to the
listing of the Shares on the Nasdaq National Market, (vii) the cost of printing
certificates representing the Shares, (viii) the costs and charges of any
transfer agent, registrar and/or depositary, (ix) all transportation and other
expenses incurred by or on behalf of representatives of the Company or M&I in
connection with presentations to prospective purchasers of the Shares (x) all
fees and disbursements of counsel and stamp duties, similar taxes or other
duties, if any, incurred by the Underwriters in connection with the Directed
Share Program and (xi) all other costs and expenses incident to the performance
of the obligations of the Company and M&I hereunder for which provision is not
otherwise made in this Section.
(j) To use its best efforts to list for quotation, prior to the Closing
Date, the Shares on the Nasdaq National Market and to maintain the listing of
the Shares on the Nasdaq National Market for a period of three years after the
date of this Agreement.
(k) To apply the net proceeds from the sale of the Shares as set forth in
the Prospectus.
(l) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company and M&I
prior to the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Shares.
(m) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(n) In connection with the Directed Share Program, to ensure that the
Directed Shares will be restricted to the extent required by the NASD or the
NASD rules from sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of effectiveness of the Registration
Statement. DLJ will notify the Company as to which Participants will need to be
so restricted. The Company will direct the removal of such transfer restrictions
upon the expiration of such period of time.
Furthermore, the Company agrees with DLJ that it will comply with all
applicable securities and other laws, rules and regulations in each foreign
jurisdiction in which the Directed Shares are offered in connection with the
Directed Share Program.
Section 6. Representations and Warranties of the Company and M&I. The
Company and M&I, jointly and severally, represent and warrant to each
Underwriter that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will
7
become effective no later than 10:00 P.M., New York City time, on the date of
this Agreement; and no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
(iii) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (B) will comply in all material respects with the Act and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied, when so filed, in all material
respects with the Act and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(d) Each of the Company and each of its subsidiaries has been duly
incorporated or organized, as the case may be, and is validly existing and in
good standing (which, with respect to the Company, means that it has filed its
most recent annual report and has not filed articles of dissolution) under the
laws of its jurisdiction of incorporation or organization, as the case may be,
and has the corporate power and authority to carry on its business as described
in the Prospectus and to own, lease and operate its properties, and is duly
qualified and in good standing and is authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
8
(e) M&I has been duly incorporated, is validly existing as a corporation
in good standing (meaning it has filed its most recent annual report and has not
filed articles of dissolution) under the laws of the State of Wisconsin and has
the corporate power and authority to own, lease and operate its properties and
conduct its business.
(f) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of or other
equity interest in the Company or any of its subsidiaries, except as provided in
the Amended and Restated Operating Agreement of Customers Forever LLC, a
Wisconsin limited liability company, dated as of the 17th day of August, 1999,
and except as otherwise disclosed in the Registration Statement.
(g) All of the outstanding shares of capital stock of the Company as set
forth in the Prospectus under the caption "Capitalization" have been duly
authorized and validly issued and are fully paid, non-assessable (subject to
Wis. Stats. (S)180.0622(2)(b)) and not subject to any preemptive or similar
rights; and the Shares have been duly authorized and, when issued and delivered
to the Underwriters against payment therefor as provided by this Agreement, will
be validly issued, fully paid, non-assessable and not subject to any preemptive
or similar rights.
(h) All of the outstanding shares of capital stock of or other equity
interests in each of the Company's subsidiaries have been duly authorized and
validly issued and are fully paid, non-assessable and owned directly by the
Company, free and clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature; and the Company does not own, directly or
indirectly, any capital stock of or other equity interest in any entity other
than M&I EastPoint Technology, Inc., Customers Forever LLC, M&I Asia Pacific,
Inc. and Avolent Inc.
(i) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(j) None of M&I, the Company or any of the Company's subsidiaries is in
violation of its respective charter or by-laws. Neither the Company nor any of
the Company's subsidiaries is in violation of any law, ordinance, administrative
or governmental rule, regulation or court decree to which the Company or any of
the Company's subsidiaries or their respective assets or property are subject.
M&I is not in violation of any law, ordinance, administrative or governmental
rule, regulation or court decree to which M&I or its assets or property are
subject, which violation would have a Material Adverse Effect. Neither the
Company nor any of its subsidiaries is in default, and no event has occurred
which, with notice or lapse of time or both, would constitute a default, in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound.
(k) This Agreement has been duly authorized, executed and delivered by
each of M&I and the Company, and each of this Agreement and the Transaction
Documents constitutes or will constitute, when duly executed by each of M&I and
the Company, valid and legally
9
binding agreements of M&I and the Company, enforceable in accordance with its
terms, except (i) to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other similar
laws affecting creditors' rights generally and by general principles of equity
(regardless of whether considered in a proceeding at law or in equity) and (ii)
rights of indemnification or contribution hereunder may be limited by federal or
state securities laws or public policy relating thereto.
(l) None of the issuance of the Shares, the execution, delivery and
performance of this Agreement or any of the Transaction Documents by M&I or the
Company, or the compliance by M&I or the Company with all the provisions hereof
or thereof and the consummation of the transactions contemplated hereby or
thereby will (i) require any consent, approval, authorization or other order of,
or qualification with, any court or governmental body or agency (except such as
have been obtained and such as may be required under the securities or Blue Sky
laws of the various states), (ii) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the charter or by-laws of M&I,
the Company or any of the Company's subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, which conflict, breach or
default would have a Material Adverse Effect, (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any court
or any governmental body or agency having jurisdiction over M&I, the Company or
any of the Company's subsidiaries or their respective property or (iv) result in
the suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or any other impairment of the
rights of the holder of any such Authorization, which suspension, termination,
revocation or impairment would have a Material Adverse Effect.
(m) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its subsidiaries
is or could be a party or to which any of their respective property is or could
be subject that are required to be described in the Registration Statement or
the Prospectus and are not so described; nor are there any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required.
(n) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), any provisions of the
Employee Retirement Income Security Act of 1974, as amended, or any provisions
of the Foreign Corrupt Practices Act, or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(o) Each of the Company and each of its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
10
respective property and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
each of its subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome to the Company or any
of its subsidiaries, except where such failure to be valid and in full force and
effect or to be in compliance, the occurrence of any such event or the presence
of any such restriction would not, singly or in the aggregate, have a Material
Adverse Effect.
(p) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
(q) Each of the Company and each of its subsidiaries has good and
marketable title to all real and personal property described in the Prospectus
as being owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Prospectus or such as do not
materially affect the value of such property or do not materially interfere with
the use of such property; and all property leased by the Company and its
subsidiaries is held by them under valid and binding leases.
(r) The Company and its subsidiaries carry, or are covered by, insurance
in such amounts and covering such risks as the Company has determined is
reasonable for the conduct of their respective businesses and the value of their
respective property.
(s) Each of the Company and each of its subsidiaries owns or possesses all
right, title and interest in and to, or has duly licensed from third parties,
all patents, patent applications, trademarks, service marks, trade names,
trademark and service ▇▇▇▇ registrations, copyrights and know-how necessary for
the conduct of its business and has no reason to believe, nor has it received
notice of any claim, that the conduct of its business infringes or conflicts
with any such rights of others, which infringement or conflict would have a
Material Adverse Effect.
(t) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent public accountants with respect to
the Company and its subsidiaries as required by the Act.
(u) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated therein at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles
11
consistently applied throughout the periods involved, except as disclosed
therein; the supporting schedules, if any, included in the Registration
Statement present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are, in
all material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company.
(v) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has paid
all taxes due thereon, and no tax deficiency has been determined adversely to
the Company which has had, nor has any tax deficiency been asserted which, if
determined adversely to the Company, would have, a Material Adverse Effect.
(w) The Company is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(x) There are no contracts, agreements or understandings between the
Company or M&I and any person granting such person the right to require the
Company or M&I to file a registration statement under the Act with respect to
any securities of the Company or to require the Company or M&I to include such
securities with the Shares registered pursuant to the Registration Statement.
(y) Since the respective dates as of which information is given in the
Prospectus, other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
neither the Company nor any of its subsidiaries has purchased any of its
outstanding capital stock or declared, paid or otherwise made any dividend or
distribution on its capital stock, (ii) there has not occurred any material
adverse change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or the earnings, business,
management or operations of the Company and its subsidiaries, taken as a whole,
(iii) there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or in the
long-term debt of the Company or its subsidiaries and (iv) neither the Company
nor its subsidiaries has incurred any material liability or obligation, direct
or contingent, or entered into any material transactions not in the ordinary
course of business.
(z) The Company has not taken and will not take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares.
(aa) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other hand, which is required to be described in the
Prospectus that is not so described.
12
(bb) Each certificate signed by any officer of the Company or M&I and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company or M&I to the Underwriters as to
the matters covered thereby.
Furthermore, the Company represents and warrants to DLJ that (i) the
Registration Statement, the Prospectus and any preliminary prospectus comply,
and any further amendments or supplements thereto will comply, with all
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or any preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program and (ii) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States.
Section 7. Indemnification. (a) Each of the Company and M&I, jointly and
severally, agrees to indemnify and hold harmless each Underwriter, its
directors, its officers and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and
all losses, claims, damages, liabilities and judgments (including, without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action that could give rise
to any such losses, claims, damages, liabilities or judgments) caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments caused
by any such untrue statement or omission or alleged untrue statement or omission
are based upon information relating to any Underwriter furnished in writing to
the Company by such Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter who failed to
deliver a Prospectus, as then amended or supplemented (so long as the Prospectus
and any amendments or supplements thereto was provided by the Company to the
several Underwriters in the requisite quantity and on a timely basis to permit
proper delivery on or prior to the Closing Date), to the person asserting any
losses, claims, damages, liabilities or judgments caused by any untrue statement
or alleged untrue statement of a material fact contained in such preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in the Prospectus, as so amended or
supplemented, and such Prospectus was required by law to be delivered at or
prior to the written confirmation of sale to such person.
(b) The Company and M&I, jointly and severally, agree to indemnify and hold
harmless DLJ and each person, if any, who controls DLJ within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act ("DLJ Entities")
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses
13
reasonably incurred in connection with defending or investigating any such
action or claim) (i) caused by any untrue statement or alleged untrue statement
of a material fact contained in the prospectus wrapper material prepared by or
with the consent of the Company for distribution in foreign jurisdictions in
connection with the Directed Share Program attached to the Prospectus or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, when considered in conjunction with the Prospectus or any
applicable preliminary prospectus, not misleading; (ii) caused by the failure of
any Participant to pay for and accept delivery of the Directed Shares which,
immediately following the effectiveness of the Registration Statement, were
subject to a properly confirmed agreement to purchase; or (iii) related to,
arising out of or in connection with the Directed Share Program, provided, that
the Company or M&I shall not be responsible under this subparagraph (iii) for
any losses, claims, damages or liabilities (or expenses relating thereto) that
are finally judicially determined to have resulted from the bad faith or gross
negligence of DLJ Entities.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company and M&I to such Underwriter, but
only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(d) If any action shall be commenced involving any person in respect of
which indemnity may be sought pursuant to Section 7(a), 7(b) or 7(c) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) (or, if in connection with the Directed Share Program,
7(b)) and 7(c), the Underwriter shall not be required to assume the defense of
such action pursuant to this Section 7(d), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such counsel,
except as provided below, shall be at the expense of such Underwriter). Any
indemnified party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with
14
any one action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all indemnified parties and all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by DLJ and CSFBC, in the case of parties indemnified
pursuant to Section 7(a), by DLJ in the case of parties indemnified pursuant to
Section 7(b), and by the Company, in the case of parties indemnified pursuant to
Section 7(c). Notwithstanding anything contained herein to the contrary, if
indemnity may be sought pursuant to Section 7(b) hereof in respect of such
action, then in addition to such separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of not
more than one separate firm of attorneys (in addition to any local counsel) for
DLJ for the defense of any losses, claims, damages and liabilities arising out
of the Directed Share Program, and all persons, if any, who control DLJ within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act.
The indemnifying party shall indemnify and hold harmless the indemnified party
from and against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with its written consent
or (ii) effected without its written consent if the settlement is entered into
more than twenty business days after the indemnifying party shall have received
a request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(e) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 7(e)(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 7(e)(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 which resulted in such
losses, claims, damages, liabilities or judgments, 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 shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by the Company and the total underwriting discounts and commissions received by
the Underwriters bear to the total price to the public of the Shares, in each
case as set forth in the table on the cover page of the
15
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall 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
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action that
could have given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7(e) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint.
(f) The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
Section 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and M&I
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date (i) a certificate dated
the Closing Date, signed by the chief executive officer and the chief financial
officer of the Company,
16
confirming the matters set forth in Sections 6(y), 8(a) and 8(b) and that the
Company has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by the
Company on or prior to the Closing Date and (ii) a certificate dated the Closing
Date, signed by the chief executive officer, the president or any vice president
of M&I, confirming the matters set forth in Section 8(a) and that M&I has
complied with all of the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied by M&I on or prior to
the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(d)(i),
8(d)(ii) or 8(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of ▇▇▇▇▇▇▇ &
▇▇▇▇, S.C., counsel for the Company and M&I, to the effect that:
(i) The Company has been duly incorporated, is validly existing as a
corporation in good standing (meaning it has filed its most recent annual
report and has not filed articles of dissolution) under the laws of the
State of Wisconsin and has the corporate power and authority to carry on
its business as described in the Prospectus and to own, lease and operate
its properties;
(ii) The Company is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction
identified on Schedule I to such opinion;
(iii) M&I has been duly incorporated, is validly existing as a
corporation in good standing (meaning it has filed its most recent annual
report and has not filed articles of dissolution) under the laws of the
State of Wisconsin and has the corporate power and authority to own, lease
and operate its properties and conduct its business;
(iv) all the outstanding shares of capital stock of the Company as
set forth in the Prospectus under the caption "Capitalization" have been
duly authorized and validly issued and are fully paid, non-assessable
(subject to Wis. Stats. (S)180.0622(2)(b)) and not subject to any
preemptive or similar rights;
(v) the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by this
Agreement, will be validly
17
issued, fully paid, non-assessable (subject to Wis. Stats.
(S)180.0622(2)(b)) and not subject to any preemptive or similar rights;
(vi) this Agreement has been duly authorized, executed and delivered
by each of the Company and M&I;
(vii) the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained
in the Prospectus;
(viii) the Registration Statement has become effective under the Act,
no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's knowledge
after due inquiry, pending before or contemplated by the Commission;
(ix) the statements under the captions "Intercompany Agreements,"
"Government Regulation," "Description of Capital Stock" and "Underwriting"
in the Prospectus and Items 14 and 15 of Part II of the Registration
Statement, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present in
all material respects the information called for with respect to such legal
matters, documents and proceedings;
(x) neither M&I nor the Company is in violation of its respective
charter or by-laws and, to the best of such counsel's knowledge after due
inquiry, the Company is not in violation of any law, ordinance,
administrative or governmental rule, regulation or court decree to which
the Company or its assets or property are subject, and, to the best of such
counsel's knowledge after due inquiry, the Company is not in default, and
no event has occurred which, with notice or lapse of time or both, would
constitute a default, in the performance of any obligation, agreement,
covenant or condition contained in any of the agreements listed on Schedule
II to such opinion;
(xi) None of the issuance of the Shares, the execution, delivery and
performance of this Agreement or any of the Transaction Documents by M&I or
the Company, or the compliance by M&I or the Company with all the
provisions hereof or thereof and the consummation of the transactions
contemplated hereby or thereby will (A) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as have been obtained and such as
may be required under the securities or Blue Sky laws of the various
states), (B) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of M&I or the
Company or any agreement listed on Schedule II to such opinion, (C) to the
best of such counsel's knowledge after due inquiry, violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree
of any court or any governmental body or agency having jurisdiction over
M&I or the Company or their respective property or (D) to the best of such
counsel's knowledge after due inquiry, result in the suspension,
termination or revocation of any Authorization of the Company or any other
impairment of the rights of the holder of any such Authorization;
18
(xii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company is or
could be a party or to which any of its property is or could be subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described, or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(xiii) to the best of such counsel's knowledge after due inquiry, the
Company has such Authorizations of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct
its business, except where the failure to have any such Authorization or to
make any such filing or notice would not, singly or in the aggregate, have
a Material Adverse Effect; and each such Authorization is valid and in full
force and effect and, to the best of such counsel's knowledge after due
inquiry, the Company is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto and no event has occurred
(including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of time
or both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization, except where such failure to be valid and in full force and
effect or to be in compliance or the occurrence of any such event would
not, singly or in the aggregate, have a Material Adverse Effect;
(xiv) The form of certificates for the Shares conforms to the
requirements of the Wisconsin Business Corporation Law.
(xv) the Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(xvi) to the best of such counsel's knowledge after due inquiry,
there are no contracts, agreements or understandings between the Company or
M&I and any person granting such person the right to require the Company or
M&I to file a registration statement under the Act with respect to any
securities of the Company or to require the Company or M&I to include such
securities with the Shares registered pursuant to the Registration
Statement; and
(xvii) (A) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements and
other financial data included therein as to which no opinion need be
expressed) comply as to form with the Act, (B) such counsel has no reason
to believe that at the time the Registration Statement became effective or
on the date of this Agreement, the Registration Statement and the
prospectus
19
included therein (except for the financial statements and other financial
data as to which such counsel need not express any belief) contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (C) such counsel has no reason to believe that the
Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial data, as aforesaid) contains any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C. described in Section 8(e) above shall
be rendered to you at the request of the Company and shall so state therein.
(f) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Sidley & Austin, counsel for the Underwriters, as to the
matters referred to in Sections 8(e)(v), 8(e)(vi), 8(e)(ix) (but only with
respect to the statements under the caption "Description of Capital Stock" and
"Underwriting") and 8(e)(xvii).
In giving such opinions with respect to the matters covered by Section
8(e)(xvii) ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C. and Sidley & Austin may state that their opinion
and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
(g) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(i) The Shares shall have been duly approved for quotation, subject to
notice of issuance, on the Nasdaq National Market.
(j) The Transaction Documents shall have been duly executed and delivered
and be in full force and effect.
(k) Neither the Company nor M&I shall have failed on or prior to the
Closing Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company or M&I on or prior
to the Closing Date.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due
20
authorization and issuance of such Additional Shares and other matters related
to the issuance of such Additional Shares.
Section 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each non-
defaulting Underwriter shall be obligated severally, in the proportion which the
number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to you
and the Company for purchase of such Firm Shares are not
21
made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. If, on an Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than one-
tenth of the aggregate number of Additional Shares to be purchased on such date,
the non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase such Additional Shares or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase on such date in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of any such Underwriter
under this Agreement.
Section 10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to Metavante
Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: N. "Norrie" ▇. ▇▇▇▇▇▇, (ii) if to M&I, to ▇▇▇▇▇▇▇▇ & Ilsley
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: M.
A. ▇▇▇▇▇▇▇▇ and (iii) if to any Underwriter or to you, to you c/▇ ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Syndicate Department, or in any case to such other address as
the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, M&I, the officers or directors of the Company or M&I or any person
controlling the Company or M&I, (ii) acceptance of the Shares and payment for
them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9), the Company and M&I agree to reimburse the
several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company and M&I shall be liable for all expenses which it
has agreed to pay pursuant to Section 5(i) hereof. The Company and M&I also
agree to reimburse the several Underwriters, their directors and officers and
any persons controlling any of the Underwriters for any and all fees and
expenses (including, without limitation, the fees disbursements of counsel)
incurred by them in connection with enforcing their rights hereunder (including,
without limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, M&I, the Underwriters,
the Underwriters' directors and officers, any controlling persons referred to
herein, the Company's directors and the
22
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
23
Please confirm that the foregoing correctly sets forth the agreement among
the Company, M&I and the several Underwriters.
Very truly yours,
METAVANTE CORPORATION
By: ______________________________
Name:
Title:
▇▇▇▇▇▇▇▇ & ILSLEY CORPORATION
By: ______________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON
CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
UBS WARBURG
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
DLJDIRECT INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: _____________________________
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By: _____________________________
24
SCHEDULE I
----------
Underwriters Number of Firm Shares
------------ to be Purchased
---------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
UBS Warburg
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
DLJdirect Inc.
25