Exhibit (1)(a)
KeyCorp
(an Ohio corporation)
Senior Debt
Securities, Subordinated
Debt Securities, Preferred Stock,
Depositary Shares representing Preferred
Stock, Warrants to Purchase Debt Securities,
Preferred Stock, Depositary Shares or Common Stock
UNDERWRITING AGREEMENT STANDARD PROVISIONS
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From time to time, KeyCorp, an Ohio corporation (the
"Company"), may enter into one or more Terms Agreements in the form of Exhibit A
hereto (each a "Terms Agreement") that provide for the sale of designated
securities to the several underwriters named therein. The standard provisions
set forth herein may be incorporated by reference in any such Terms Agreement.
The Terms Agreement including the provisions incorporated therein by reference,
is herein referred to as "this Agreement." Unless otherwise defined herein,
terms defined in the Terms Agreement are used herein as therein defined.
1. DESCRIPTION OF SECURITIES. The Company proposes to issue
and sell from time to time, either together or separately, certain of its (i)
senior debt securities (the "Senior Debt Securities") and/or (ii) subordinated
debt securities (the "Subordinated Debt Securities," and together with the
Senior Debt Securities, the "Debt Securities"), and/or (iii) preferred stock
(the "Preferred Stock"), and/or (iv) depositary shares which represent
fractional interests in the Preferred Stock (the "Depositary Shares") and/or (v)
warrants (the "Warrants") to purchase Debt Securities, Preferred Stock,
Depositary Shares or the Company's Common Shares, with a par value of $1 each
(the "Common Stock"), in one or more offerings on terms determined at the time
of sale and set forth in a Terms Agreement. The Subordinated Debt Securities may
be convertible into Capital Securities (as defined below) of the Company and the
Preferred Stock may be convertible into shares of Common Stock, Debt Securities
or any class or series of Capital Securities in each case as set forth in the
applicable Terms Agreement relating thereto. As used herein, "Capital
Securities" means any securities issued by the Company which consist of (i)
Common Stock, (ii) perpetual preferred stock or (iii) other capital securities
of the Company permitted by the Company's primary federal banking regulator.
Capital Securities may have such terms, rights and preferences as may be
determined by the Company.
The Senior Debt Securities are to be issued under an Indenture
dated as of June 10, 1994, as amended or supplemented (the "Senior Indenture"),
between the Company and Bankers Trust Company, as trustee (the "Senior
Trustee"). The Subordinated Debt Securities are
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to be issued under an Indenture dated as of June 10, 1994, as amended or
supplemented (the "Subordinated Indenture"), between the Company and Bankers
Trust Company, as trustee (the "Subordinated Trustee," and together with the
Senior Trustee, the "Trustees"). The Senior Indenture and the Subordinated
Indenture are collectively referred to herein as the "Indentures." The Senior
Debt Securities and the Subordinated Debt Securities may have varying titles,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, conversion terms, if any, and other specific terms as
set forth in the applicable Terms Agreement relating thereto.
The Warrants are to be issued under warrant agreements (each a
"Warrant Agreement"), between the Company and a bank or trust company, as
warrant agent (the "Warrant Agent"). The Warrants may have varying titles,
expiration dates, selling prices, redemption terms, if any, adjustment terms, if
any, and other specific terms as set forth in the applicable Terms Agreement
relating thereto.
Each issue of Preferred Stock may vary as to the specific
number of shares, title, stated value and liquidation preference, issuance
price, dividend rate or rates (or method of calculation), dividend payment
dates, redemption or sinking fund requirements, conversion provisions and any
other variable terms as set forth in the applicable Terms Agreement relating to
such Preferred Stock. If the shares of Preferred Stock are to be offered in the
form of Depositary Shares, the Preferred Stock will, when issued, be deposited
by the Company against delivery of depositary receipts (the "Depositary
Receipts") to be issued under a deposit agreement (the "Deposit Agreement"), to
be entered into among the Company, a depositary institution (the "Depositary")
and the holders from time to time of the Depositary Receipts issued thereunder.
The Depositary Receipts will evidence the Depositary Shares and each Depositary
Share will represent a fraction of a share of Preferred Stock. The Preferred
Stock, together, if applicable, with the Depositary Shares is hereinafter
referred to as the "Shares".
The Debt Securities, Warrants and Shares to be issued and sold
as specified in the applicable Terms Agreement, shall collectively be referred
to herein as the "Offered Securities." The Company may also grant to the
Underwriters an option to purchase additional Offered Securities to cover
over-allotments, if any, as specified in the applicable Terms Agreement (the
"Option Securities"). The Offered Securities and Option Securities, if any,
shall collectively be referred to as the "Securities." As used herein, unless
the context otherwise requires, the term "Underwriters" shall mean the firm or
firms specified as Underwriter or Underwriters in the applicable Terms Agreement
relating to the Securities and the term "you" shall mean the Underwriter or
Underwriters, if no underwriting syndicate is purchasing the Securities, or the
representative or representatives of the Underwriters specified in the
applicable Terms Agreement (the "Representatives"), if an underwriting syndicate
is purchasing the Securities, as specified in the applicable Terms Agreement.
The Debt Securities, Preferred Stock, Depositary Shares and
Warrants may be sold either separately or as units (the "Units").
Whenever the Company determines to make an offering of
Securities, the Company will enter into a Terms Agreement providing for the sale
of the applicable Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to
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the Securities shall specify the type of Securities to be issued, the names of
the Underwriters participating in such offering (subject to substitution as
provided in Section 9 hereof), the number of Offered Securities which each such
Underwriter severally agrees to purchase, the price at which the Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price of the Securities, the time and place of delivery and payment and
other specific terms. The Terms Agreement may take the form of an exchange of
any standard form of written telecommunication between you and the Company. Each
offering of Securities will be governed by this Agreement and shall inure to the
benefit of and be binding upon the Company and each Underwriter participating in
the offering of such Securities.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333- ), including a prospectus, relating to the Securities and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act" and the rules and
regulations thereto being referred to as the "Securities Act Regulations"),
which registration statement also constitutes post-effective amendment No. 1 to
the registration statement No. 333-50802 relating to the Company's Debt
Securities, Common Shares, Preferred Stock, Depositary Shares, Warrants and
Capital Securities. Such registration statement and such post-effective
amendment, as amended have been declared effective by the Commission. As
provided in Section 4(a), a prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof and the other matters set forth
therein has been prepared and filed, or will be filed, pursuant to Rule 424
under the Securities Act. Such prospectus supplement, in the form first filed
after the date of the applicable Terms Agreement pursuant to Rule 424, is herein
referred to as the "Prospectus Supplement." Such registration statement and such
post-effective amendments, as amended at the date of the applicable Terms
Agreement, including the exhibits thereto and the documents incorporated by
reference therein, are herein called the "Registration Statement," and the basic
prospectus included therein relating to all offerings of securities under the
Registration Statement, as supplemented by the Prospectus Supplement, is herein
called the "Prospectus," except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is first
filed pursuant to Rule 424, the term "Prospectus" shall refer to the basic
prospectus as so amended or supplemented and as supplemented by the Prospectus
Supplement, in either case including the documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference therein. Any preliminary
prospectus supplement included in such Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the Securities Act Regulations is herein
called a "Preliminary Prospectus".
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each Representative and each
Underwriter that:
(a) The Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission.
(b) The Company meets the requirements for use of Form S-3
under the Securities Act and the Registration Statement and the
Prospectus (as amended or
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supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder; each part of the Registration
Statement and any amendment or supplement thereto, as of the date such
part became or becomes effective, did not or will not 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; each Prospectus, and any amendment or
supplement thereto, as of the date thereof, did not or will not include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the
preparation of the Registration Statement and such Prospectus.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, comply, or will comply, as the case may be, in all
material respects to the requirements of the Exchange Act and, if
applicable, the Securities Act and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, or any amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Exchange Act and, as applicable,
the Securities Act and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) The financial statements and the supporting schedules
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the financial position of the
Company and its subsidiaries on a consolidated basis, as at the dates
indicated, and the respective results of operations for the periods
specified, in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved.
(e) (i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Ohio, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial position
or results of operations of the Company and its subsidiaries; (ii) each
of its national bank subsidiaries is a duly organized and validly
existing national banking association under the laws of the United
States, continues to hold a valid certificate to do business as such
and has full power and authority to conduct its business as such; each
of its other significant subsidiaries, as defined in Regulation S-
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X (the "Significant Subsidiaries"), is duly organized and validly
existing under the laws of the jurisdiction of its organization with
corporate power and authority under such laws to conduct its business;
and (iii) all of the outstanding shares of capital stock of each such
subsidiary have been duly authorized and validly issued, are fully paid
and non-assessable (except, with respect to any subsidiary that is a
national bank, as provided by Section 55 of Title 12 of the United
States Code) and (except as otherwise stated in the Registration
Statement) are owned beneficially by the Company subject to no security
interest, pledge, lien, charge or other encumbrance or adverse claim.
(f) The execution and delivery of this Agreement, the
Indentures, the Warrant Agreement, and the Deposit Agreement, if any,
and the consummation of the transactions contemplated herein and
therein, have been duly authorized by all necessary corporate action
and when executed by the Company and the other parties thereto will not
result in any breach of any of the terms, conditions or provisions of,
or constitute a default under, or result in the creation or imposition
of any security interest, lien, charge or encumbrance upon any property
or assets of the Company or its subsidiaries, pursuant to any
indenture, loan agreement, contract or other material agreement or
instrument to which the Company or its subsidiaries is a party or by
which the Company may be bound or to which any of the property or
assets of the Company or its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Amended and
Restated Articles of Incorporation or the Amended and Restated
Regulations of the Company or its subsidiaries or any applicable
statute, rule or regulation or, to the best of its knowledge, any
order of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective
properties.
(g) If the Securities include Debt Securities, such Debt
Securities shall, on the date of the Terms Agreement relating to such
Securities, be duly authorized and, when such Debt Securities are duly
executed, authenticated and delivered in the manner provided for in the
applicable Indenture and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Debt Securities will
constitute legal, valid and binding obligations of the Company entitled
to the benefits of the applicable Indenture and enforceable against the
Company in accordance with their terms subject, as to enforcement, to
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally and
to general equity principles; and, if the Securities include
Subordinated Debt Securities that are convertible into Capital
Securities, then such Subordinated Debt Securities shall be convertible
into Capital Securities in accordance with their terms and the terms of
the Subordinated Indenture.
(h) If the Securities include Preferred Stock, such shares of
Preferred Stock shall, on the date of the Terms Agreement relating to
such Securities, be duly authorized and, when such shares of Preferred
Stock are duly executed and delivered and issued and paid for in
accordance with this Agreement and the applicable Terms Agreement, such
shares of Preferred Stock will have been validly issued, fully paid and
non-assessable; no holder thereof will be subject to personal liability
by reason of being such a holder; such shares of Preferred Stock will
not be subject to the preemptive rights of any stockholder of the
Company; and all corporate action required to be taken for the
authorization, issue and sale of such shares of Preferred Stock has
been, or at the Closing Date will be, validly and sufficiently taken;
and, if the Securities include shares of Preferred Stock that
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are to be represented by Depositary Shares, then, upon deposit by the
Company of such shares of Preferred Stock with the Depositary pursuant
to the Deposit Agreement and the execution by the Depositary of the
Depositary Receipts evidencing the Depositary Shares, such Depositary
Shares shall represent legal and valid interests in such shares of
Preferred Stock; and, if the Securities include shares of Preferred
Stock that are convertible into Capital Securities, Debt Securities or
other preferred stock, then such shares of Preferred Stock shall be
convertible into Capital Securities, Debt Securities or other preferred
stock in accordance with their terms and the terms of the Certificate
of Amendment establishing a series of a class of stock relating to such
shares of Preferred Stock (the "Certificate of Amendment").
(i) If the Securities include Warrants, such Warrants shall,
on the date of the Terms Agreement relating to such Securities, be duly
authorized and, when such Warrants are duly executed, countersigned and
delivered in the manner provided for in the Warrant Agreement and
issued and paid for in accordance with this Agreement and the
applicable Terms Agreement, such Warrants will constitute legal, valid
and binding obligations of the Company entitled to the benefits of the
Warrant Agreement and enforceable against the Company in accordance
with their terms subject, as to enforcement, to bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally and to general equity principles;
and the Warrants shall be exercisable for Debt Securities or Preferred
Stock in accordance with their terms and the terms of the Warrant
Agreement.
(j) If the Securities include Preferred Stock convertible into
Debt Securities or Debt Securities, the Indentures have been duly
authorized by the Company and qualified under the Trust Indenture Act,
will be substantially in the forms filed as exhibits to the
Registration Statement and, when duly executed and delivered by the
Company and the Trustees, will constitute legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms subject, as to enforcement, to bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and to general
equity principles; and the summary descriptions of the Indentures set
forth in the Prospectus conform in all material respects to the
provisions contained in the Indentures.
(k) If the Securities include Preferred Stock convertible into
Capital Securities or other preferred stock and/or Subordinated Debt
Securities convertible into Capital Securities, the Capital Securities
or preferred stock issuable upon conversion of the shares of Preferred
Stock pursuant to their terms and the terms of the Certificate of
Amendment and/or the Capital Securities issuable upon conversion of the
Subordinated Debt Securities pursuant to their terms and the terms of
the Subordinated Indenture, on the date of the Terms Agreement relating
to such Securities, shall be duly authorized and validly reserved for
issuance upon such conversion by all necessary corporate action and
such Capital Securities or other preferred stock, when issued upon such
conversion will be validly issued, fully paid and non-assessable; no
holder thereof will be subject to personal liability by reason of being
such a holder; and the issuance of such Capital
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Securities or other preferred stock upon such conversion will not be
subject to preemptive rights.
(l) If the Securities include Depositary Shares, the Deposit
Agreement has been duly authorized by the Company, will be
substantially in the form filed as an exhibit to the Registration
Statement and, when duly executed and delivered by the Company and the
Depositary, will constitute a legal, valid and binding obligation of
the Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium
or other similar laws relating to or affecting creditors' rights
generally and to general equity principles; and the summary description
of the Deposit Agreement set forth in the Prospectus conforms in all
material respects to the provisions contained in the Deposit Agreement.
(m) If the Securities include Warrants, the Warrant Agreement
has been duly authorized by the Company, will be substantially in the
form filed as an exhibit to the Registration Statement and, when duly
executed and delivered by the Company and the Warrant Agent, will
constitute a legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency (including, without limitation, laws relating
to fraudulent transfer), reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and to general
equity principles; and the summary description of the Warrant Agreement
conforms in all material respects to the provisions contained in the
Warrant Agreement.
(n) If applicable, the shares of a Company's Common Stock,
issuable upon conversion or exercise of any issue of Offered Securities
have been duly authorized and reserved for issuance upon such
conversion by all necessary corporate action and, when issued and
delivered in accordance with the provisions of this Agreement relating
thereto, will be validly issued, fully paid and non-assessable, no
holder thereof will be subject to personal liability by reason of being
such a holder; and the issuance of such shares upon such conversion
will not be subject to preemptive rights.
(o) The Securities conform in all material respects to the
summary descriptions thereof contained or incorporated by reference in
the Prospectus and such summary descriptions conform to the rights set
forth in the instruments defining the same.
(p) To the knowledge of the Company and except as set forth in
the Prospectus, there is no threatened action, suit or proceeding that
could reasonably be expected to result in any material adverse change
in the condition (financial or other), business or results of
operations of the Company and its subsidiaries, or could reasonably be
expected to materially and adversely affect the properties or assets
thereof.
(q) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Securities or the Capital Securities.
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(r) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change in the condition (financial or other),
business or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus.
(s) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(t) The aggregate amount of Securities to be purchased
pursuant to this Agreement does not exceed the amount remaining
registered under the Registration Statement.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with an offering of Securities shall be deemed a representation and warranty by
the Company, as to the matters covered thereby, to each Underwriter
participating in such offering.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES. On the basis of
the representations, warranties and agreements herein contained and contained in
the applicable Terms Agreement, but subject to the terms and conditions herein
and therein set forth, the Company agrees to issue and sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company pursuant to the terms of a Terms Agreement.
If so authorized in the Terms Agreement, the Underwriters may
solicit offers from investors of the types set forth in the Prospectus to
purchase Securities from the Company pursuant to delayed delivery contracts
("Delayed Delivery Contracts"). Such contracts shall be substantially in the
form of Exhibit I hereto but with such changes therein as the Company may
approve. As compensation for arranging Delayed Delivery Contracts, the Company
will pay to the Representatives on the Closing Date, for the accounts of the
Underwriters, a fee as follows: (i) in the case of Debt Securities, Debt
Warrants and Units consisting of Debt Securities and Debt Warrants, an amount
equal to the percentage set forth in the applicable Terms Agreement of the
principal amount of the Debt Securities or number of Debt Warrants for which
such Delayed Delivery Contracts are made; (ii) in the case of Preferred Stock,
Depositary Shares and Units consisting of Preferred Stock and any other
Securities, an amount equal to the percentage set forth in the applicable Terms
Agreement of the aggregate liquidation preference of the Preferred Stock,
including shares represented by such Depositary Shares, for which Delayed
Delivery Contracts are made; (iii) in the case of all other Securities, an
amount as set forth in the applicable Terms Agreement of Securities for which
such Delayed Delivery Contracts are made. Securities to be purchased pursuant to
Delayed Delivery Contracts are herein called "Contract Securities." When Delayed
Delivery Contracts are authorized in the applicable Terms Agreement, the Company
will enter into a Delayed Delivery Contract in each case where a sale of
Contract Securities arranged through you has been approved by the Company but,
except as the Company may otherwise agree, such Delayed Delivery Contracts must
be for at least the minimum amount of Contract Securities set forth in the
applicable Terms Agreement hereto, and the aggregate amount of Contract
Securities may not exceed the amount set forth in such
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Schedule. The Company will advise you not later than 10:00 A.M., New York City
time, on the third full business day preceding the Closing Date (or at such
later time as you may otherwise agree) of the sales of Contract Securities that
have been so approved. You and the other Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts.
The Representatives shall submit to the Company, at least
three business days prior to Closing Date, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the amount or number of Securities to be purchased by
each of them, and the Company will advise the Representatives, at least two
business days prior to Closing Date, of the names of the institutions with which
the making of Delayed Delivery Contracts is approved by the Company and the
amount or number of Securities to be covered by each such Delayed Delivery
Contract.
The amount of Securities to be purchased by each Underwriter
as set forth in the applicable Terms Agreement shall be reduced by an amount
which shall bear the same proportion to the total amount of Contract Securities
as the amount of Securities set forth opposite the name of such Underwriter
bears to the total amount of Securities set forth in the applicable Terms
Agreement, except to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company; provided, however,
that the total amount of Securities to be purchased by all Underwriters shall be
the total amount of Securities set forth in the applicable Terms Agreement less
the aggregate amount of Contract Securities.
The Offered Securities to be purchased by the Underwriters
will be delivered by the Company to you for the accounts of the several
Underwriters at the office specified in the applicable Terms Agreement against
payment of the purchase price therefor by certified or official bank check or
checks in New York Clearing House (next day) funds payable to the order of the
Company at the office, on the date and at the times specified in such Terms
Agreement, or at such other time not later than eight full business days
thereafter as you and the Company determine, such time being herein referred to
as the "Offered Securities Closing Date." The Option Securities to be purchased
by the Underwriters will be delivered by the Company to you for the accounts of
the several Underwriters at the office specified in the applicable Terms
Agreement against payment of the purchase price therefor by certified or
official bank check or checks in New York Clearing House (next day) funds
payable to the order of the Company at the office, on the date and at the times
specified in such Terms Agreement, or at such other time not later than eight
full business days thereafter as you and the Company determine, such time being
herein referred to as the "Option Closing Date." The Offered Securities Closing
Date and the Option Securities Closing Date are hereinafter collectively
referred to as the "Closing Date." Such Securities will be prepared in
definitive form and in such authorized denominations and registered in such
names as you may require upon at least two business days' prior notice to the
Company and will be made available for checking and packaging at the office at
which they are to be delivered on the applicable Closing Date (or such other
office as may be specified for that purpose in the Terms Agreement) at least one
business day prior to the applicable Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to the
Company on behalf of any other
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Underwriter for Securities to be purchased by such Underwriter. Any such payment
by you shall not relieve any such Underwriter of any of its obligations
hereunder.
The Company will pay to you on the applicable Closing Date for
the account of each Underwriter any commission or other compensation that is
specified in the Terms Agreement. Such payment will be made by certified or
official bank check in New York Clearing House (next day) funds.
4. COVENANTS. The Company covenants and agrees with each
Representative and each Underwriter that:
(a) (i) If reasonably requested by you in connection with the
offering of the Offered Securities, the Company will prepare a
Preliminary Prospectus containing such information concerning the
Securities as you and the Company deem appropriate and (ii) immediately
following the execution of each Terms Agreement, the Company will
prepare a Prospectus Supplement that complies with the Securities Act
and the Securities Act Regulations and that sets forth the number or
principal amount of Securities covered thereby, the names of the
Underwriters participating in the offering and the number or principal
amount of Securities which each severally has agreed to purchase, the
name of each Underwriter, if any, acting as representative in
connection with the offering, the price at which the Securities are to
be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, and
such other information concerning the Securities as you and the Company
deem appropriate in connection with the offering of the Securities. The
Company will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424 under the Securities Act
and will furnish to the Underwriters named therein as many copies of
any Preliminary Prospectus, the Prospectus and the Prospectus
Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Offered
Securities any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters
or counsel for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances under which they were
made, or if it shall be necessary, in the opinion of either such
counsel, at any such time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the requirements
of the Securities Act or the Securities Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section
4(d), such amendment or supplement as may be necessary to correct such
untrue statement or omission or to make the Registration Statement or
the Prospectus comply with such requirements. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of the
conditions set forth in Section 5.
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(c) During the period when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Offered
Securities, the Company will, subject to Section 4(d), file promptly
all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(d) During the period between the date of the applicable Terms
Agreement and the Closing Date, the Company will inform you of its
intention to file any amendment to the Registration Statement, any
supplement to the Prospectus or any document that would as a result
thereof be incorporated by reference in the Prospectus, will furnish
you with copies of any such amendment, supplement or other document and
will not file any such amendment, supplement or other document in a
form to which you or your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the Offered
Securities, the Company will notify you immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement; (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference in
the Prospectus; (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus
or the Prospectus Supplement; (iv) of any request by the Commission for
any amendment to the Registration Statement or any supplement to the
Prospectus or for additional information relating thereto or to any
document incorporated by reference in the Prospectus; and (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, or of the institution or threatening of any proceeding
for any of such purposes. The Company will use every reasonable effort
to prevent the issuance of any such stop order or of any order
suspending such qualification and, if any such order is issued, the
Company will use every reasonable effort to obtain the lifting thereof
at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many
copies of the Registration Statement as originally filed and of all
amendments thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the
Prospectus pursuant to Item 12 of Form S-3 under the Securities Act)
and copies of all consents and certificates of experts as you may
reasonably request, and has furnished or will furnish to you, for each
other Underwriter, one copy of the Registration Statement as originally
filed and of each amendment thereto (including documents incorporated
by reference into the Prospectus but without exhibits).
(g) The Company will use its reasonable best efforts to
qualify the Offered Securities and, if applicable, any Debt Securities,
Preferred Stock or Common Stock which may be issuable pursuant to the
exercise of the applicable Warrants and Capital Securities into or for
which the Subordinated Debt Securities are convertible and the Capital
Securities, other preferred stock or Debt Securities into which the
shares of Preferred Stock are convertible for offering and sale under
the applicable securities laws
11
of such states and other jurisdictions as you may reasonably designate
and to maintain such qualifications in effect for a period of not less
than one year from the effective date of the Terms Agreement applicable
to such Offered Securities; provided, however, that the Company shall
not be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which
the Offered Securities have been qualified as above provided.
(h) With respect to each sale of Offered Securities, the
Company will make generally available to its security holders as soon
as practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the Securities Act
Regulations) covering a period of 12 months beginning, in each case,
not later than the first day of the Company's fiscal quarter next
following the effective date (as defined in Rule 158) of the
Registration Statement relating to the Offered Securities.
(i) If and to the extent specified in the applicable Terms
Agreement, the Company will use its best efforts to effect the listing
of the Offered Securities and, if applicable, any Debt Securities,
Preferred Stock or Common Stock which may be issuable pursuant to the
exercise of the applicable Warrants and the Capital Securities, other
preferred stock or Debt Securities issuable upon conversion of
Preferred Stock and/or Capital Securities issuable upon conversion of
Subordinated Debt Securities, on the New York Stock Exchange or such
other national securities exchange as may be designated in the
applicable Terms Agreement by the Closing Date with respect to the
applicable Terms Agreement.
(j) For a period of five years after the Closing Date, the
Company will furnish to you copies of all annual reports, quarterly
reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall
be furnished by the Company to its stockholders generally.
(k) Between the date of the applicable Terms Agreement and the
Closing Date or such other date as is set forth in such Terms
Agreement, the Company will not, without your prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, the securities set forth in such
Terms Agreement, other than as set forth in such Terms Agreement.
(l) The Company, whether or not the transactions contemplated
hereunder are consummated or the Agreement is terminated, will pay all
expenses incident to the performance of its obligations hereunder, will
pay the expenses of printing or otherwise producing all documents
relating to the offering, and will pay, or reimburse the Underwriters,
for any reasonable expenses (including fees and disbursements of
counsel) incurred by them in connection with the matters referred to in
Section 4(g) hereof and the preparation of memoranda relating thereto,
for any filing fee of the National Association
12
of Securities Dealers, Inc. relating to the Securities, for any fees
charged by investment rating agencies for rating the Securities, for
any fees and expenses of any Trustee and any agent of any Trustee in
connection with any Indenture and the Securities, for any listing fees
and for the cost of mailing any Preliminary Prospectus. Notwithstanding
the foregoing, if there is a mistake in the written information
furnished by the Representative or Representatives to the Company for
use in the Prospectus and if such Prospectus is required to be
reprinted pursuant to Sections 4(b) and 4(d), then the expense of
reprinting such Prospectus shall be borne, severally, by the
Underwriter or Underwriters who shall have furnished such incorrect
information to such Representative or Representatives.
(m) The Company will apply the net proceeds from the sale of
the Securities as set forth in the Prospectus.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters to purchase and pay for the Offered Securities as
provided herein shall be subject to the accuracy, as of the date hereof and the
date of any such Terms Agreement and the Closing Date (as if made at the Closing
Date), of the representations and warranties of the Company herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of all of its covenants and other obligations hereunder and to the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
in accordance with the Securities Act Regulations and Section 4(a) of
this Agreement. No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, threatened by the Commission.
(b) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change or any development in or
affecting particularly the business or properties of the Company or
its subsidiaries which, in the judgment of a majority in interest
of the Underwriters, materially impairs the investment quality of the
Securities; (ii) the suspension of trading in any securities of the
Company by the Commission or a national securities exchange, or the
suspension of trading on the New York Stock Exchange or the American
Stock Exchange, or the fixing of minimum or maximum prices for
trading, or the requirement of maximum ranges for prices for
securities, on the New York Stock Exchange or the American Stock
Exchange, by such Exchange or by order of the Commission or any other
governmental authority having jurisdiction; (iii) any major disruption
of settlement of securities and any banking moratorium declared by
Federal or New York authorities; (iv) any downgrading in the rating
accorded the Company's Debt Securities or Preferred Stock by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act or any public announcement that any such organization
has under surveillance or review, with possible negative implications,
its rating of any of the Company's Debt Securities or Preferred Stock;
or (v) any outbreak or escalation of hostilities in which the United
States is involved, a declaration of war by Congress, any major act of
terrorism against the United States, any other substantial national or
international calamity or crisis or any other event or occurrence of a
similar character if, in the judgment of a majority in interest of the
Underwriters, including any Representatives, the effect of any
13
such outbreak, escalation, declaration, calamity or other event or
occurrence makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. Promptly
after the determination by such majority in interest of the
Underwriters that it is impractical or inadvisable to proceed with the
completion of the sale and payment for the Securities, the
Representatives shall notify the Company of such determination in
writing; but the omission so to notify the Company shall not act to
modify the rights of the Underwriters under this Section 5(b).
(c) On the applicable Closing Date, you shall have received
the opinion of the General Counsel, any Associate General Counsel or
any Senior Managing Counsel to the Company and/or ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP,
counsel to the Company, as indicated in the applicable Prospectus
Supplement, dated the Closing Date, together with signed or reproduced
copies of such opinion for each of the other Underwriters, in form and
substance satisfactory to you or your counsel, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of Ohio
and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; each of KeyBank
National Association and Key Bank USA, National Association
(the "National Banks") is a duly organized and validly
existing national banking association under the laws of the
United States and continues to hold a valid certificate to do
business as such; each of the Company and the National Banks
has full corporate power and authority to conduct its business
as described in the Registration Statement and Prospectus and
is duly qualified to do business in each jurisdiction in which
it owns or leases real property, except where the failure to
be so qualified, considering all such cases in the aggregate,
does not involve a material risk to the business, properties,
financial position or results of operations of the Company and
its subsidiaries taken as a whole; and all of the outstanding
shares of capital stock of each of the National Banks have
been duly authorized and validly issued, are fully paid and
non-assessable (exceptions to be specified) and (except as
otherwise stated in the Registration Statement) are owned
beneficially by the Company subject to no security interest,
other encumbrance or adverse claim.
(ii) This Agreement, the applicable Terms Agreement
and any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(iii) The Offered Securities conform in all material
respects to the description thereof contained or incorporated
by reference in the Prospectus and such description conforms
in all material respects to the rights set forth in the
instruments defining the same.
(iv) If the Offered Securities include Debt
Securities, such Debt Securities have been duly authorized
and, when such Debt Securities are duly executed,
authenticated and delivered in the manner provided for in the
applicable Indenture and issued and paid for in accordance
with this Agreement and the
14
applicable Terms Agreement, such Debt Securities will
constitute valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture and
enforceable against the Company in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and, if the Offered Securities include
Subordinated Debt Securities that are convertible into Capital
Securities, then such Subordinated Debt Securities are
convertible into Capital Securities in accordance with their
terms and the terms of the Subordinated Indenture.
(v) If the Offered Securities include Preferred
Stock, such shares of Preferred Stock have been duly
authorized and, when such shares of Preferred Stock are duly
executed and delivered and issued and paid for in accordance
with this Agreement and the applicable Terms Agreement, such
shares of Preferred Stock will have been validly issued, fully
paid and non-assessable and no holder thereof will be subject
to personal liability by reason of being such a holder; such
shares of Preferred Stock will not be subject to the
preemptive rights of any stockholder of the Company; and all
corporate action required to be taken for the authorization,
issue and sale of such shares of Preferred Stock has been
validly and sufficiently taken; and, if the Offered Securities
include shares of Preferred Stock that are to be represented
by Depositary Shares, then, upon deposit by the Company of
such shares of Preferred Stock with the Depositary pursuant to
the Deposit Agreement and the execution by the Depositary of
the Depositary Receipts evidencing the Depositary Shares, such
Depositary Shares shall represent legal and valid interests in
such shares of Preferred Stock; and, if the Offered
Securities, Debt Securities and Debt Securities include shares
of Preferred Stock that are convertible into Capital
Securities, Debt Securities or other preferred stock, then
such shares of Preferred Stock are convertible into Capital
Securities, Debt Securities or other preferred stock in
accordance with their terms and the terms of the Certificate
of Amendment.
(vi) If the Offered Securities include Warrants, such
Warrants have been duly authorized and, when such Warrants are
duly executed, authenticated and delivered in the manner
provided for in the Warrant Agreement and issued and paid for
in accordance with this Agreement and the applicable Terms
Agreement, such Warrants will constitute valid and binding
obligations of the Company entitled to the benefits of the
Warrant Agreement and enforceable against the Company in
accordance with their terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Warrants are
exercisable for Debt Securities, shares of Preferred Stock or
Common Stock in accordance with their terms and the terms of
the Warrant Agreement.
(vii) If the Offered Securities include Debt
Securities or Preferred Stock convertible into Debt
Securities, the applicable Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and
15
legally binding instrument of the Company enforceable in
accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles; and each applicable
Indenture has been duly qualified under the Trust Indenture
Act.
(viii) If the Offered Securities include Preferred
Stock convertible into Capital Securities or other preferred
stock and/or Subordinated Debt Securities convertible into
Capital Securities, the Capital Securities or other preferred
stock issuable upon conversion of the shares of Preferred
Stock pursuant to their terms and the terms of the Certificate
of Amendment and/or the Capital Securities issuable upon
conversion of the Subordinated Debt Securities pursuant to
their terms and the terms of the Subordinated Indenture, have
been duly authorized and validly reserved for issuance upon
such conversion by all necessary corporate action and such
Capital Securities or other preferred stock, when issued upon
such conversion, will be validly issued, fully paid and
nonassessable and no holder thereof will be subject to
personal liability by reason of being such a holder; and the
issuance of such Capital Securities or other preferred stock
upon such conversion will not be subject to preemptive rights.
(ix) If the Offered Securities include Depositary
Shares, the Deposit Agreement has been duly authorized,
executed and delivered by the Company, and assuming due
authorization, execution and delivery thereof by the
Depositary, constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(x) If the Offered Securities include Warrants, the
Warrant Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Warrant Agent,
constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(xi) The issue and sale of the Offered Securities and
the performance by the Company of its obligations under the
Offered Securities, the Indenture and this Agreement or other
agreement pursuant to which the Underwriters purchase Offered
Securities and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule or regulation,
any agreement or instrument known to such counsel to which the
Company is a party or by which it is bound, the Company's
Articles of Incorporation or Regulations, or any order known
to such counsel of any court or governmental agency or body
having jurisdiction over the Company.
16
(xii) No consent, approval, authorization, order,
registration or qualification of or filing with any court or
governmental agency or body is required for the issue and sale
of Securities or the consummation of the other transactions
contemplated by this Agreement, any applicable Terms Agreement
or other agreement pursuant to which an Underwriter purchases
Securities, except such consents, approvals, authorizations,
registrations or qualifications as have been obtained under
the Securities Act and the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection
with purchases of Securities.
(xiii) The Registration Statement has become
effective under the Securities Act; any required amendment or
supplement to the Prospectus has been filed as required by
Section 4(a) hereof; and to the best knowledge of such counsel
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission.
(xiv) Such counsel is of the opinion ascribed to it
in the Prospectus under the caption "United States Tax
Considerations," if any.
(xv) The Registration Statement and the Prospectus,
each as amended or supplemented on the Closing Date (except
for the financial statements and other financial and
statistical data contained therein or omitted therefrom and
the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee as to which such counsel need
express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the
Exchange Act and the respective rules thereunder, and such
counsel has no reason to believe that the Registration
Statement, as amended (except for the financial statements and
other financial or statistical data contained or incorporated
therein or omitted therefrom and the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee as to
which such counsel need express no opinion) at the time it
became effective and at the date of this Agreement, contained
any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, as amended or supplemented (except for the
financial statements and other financial or statistical data
contained or incorporated therein or omitted therefrom and the
Statement of Eligibility (Form T-1) under the Trust Indenture
Act of the Trustee as to which such counsel need express no
opinion) as of the Closing Date, contains any untrue statement
of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration
Statement required to be filed which is not filed as required.
Such opinion or opinions shall be to such further effect with respect
to other legal matters relating to this Agreement, any Delayed Delivery
Contracts and the sale of the Offered Securities, pursuant to this
Agreement as counsel for the Underwriters may reasonably
17
request. Such opinion or opinions shall be limited to New York, Ohio,
and federal law and, if applicable, the law of the state of
incorporation of any other Significant Subsidiary. In giving such
opinion, such counsel may rely, as to all matters governed by the laws
of jurisdictions in which such counsel is not qualified and the federal
law of the United States, upon opinions of other counsel, who shall be
counsel satisfactory to counsel for the Underwriters, in which case the
opinion shall state that they believe you and they are entitled to so
rely. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company, the National
Banks and the Significant Subsidiaries and certificates of public
officials.
In rendering their opinion, such counsel may rely upon the
opinion of Shearman & Sterling referred to below as to any matters
governed by New York law covered therein.
(d) At the applicable Closing Date, you shall have received
the favorable opinion of Shearman & Sterling, Counsel for the
Underwriters, such opinion or opinions, dated the Closing Date,
together with signed or reproduced copies of such opinion for each of
the other Underwriters, to the effect that the opinion delivered
pursuant to Section 5(c) appears on its face to be appropriately
responsive to the requirements of this Agreement and the applicable
Terms Agreement and with respect to the incorporation of the Company,
the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as you reasonably may request and
such counsel shall have received such papers and information as they
request to enable them to pass upon such matters. In rendering their
opinion, such counsel may rely upon the opinion rendered on behalf of
the Company referred to above as to all matters governed by Ohio law.
(e) At or prior to the time of execution of the applicable
Terms Agreement and on the Closing Date, you shall have received a
letter from Ernst & Young LLP, dated the date of delivery thereof, to
the effect set forth in Exhibit II hereto.
(f) You shall have received from the Company a certificate,
signed by the Chairman of the Board, the President or an Executive Vice
President, and by the principal financial or accounting officer, of the
Company, dated the Closing Date, to the effect that, to the best of
their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company
in this Agreement are true and correct, 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
performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or is threatened by the
Commission.
(g) The Securities shall have been duly authorized for listing
on such exchange, if any, and at such time as specified in the
applicable Terms Agreement.
18
(h) In the event the Underwriters exercise their option
provided in a Terms Agreement to purchase all or a portion of the
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Option
Securities Closing Date, and you shall have received:
(1) A certificate, dated such Option Securities
Closing Date, signed by the Chairman of the Board, the
President or an Executive Vice President, and by the principal
financial or accounting officer of the Company, confirming
that the certificate delivered at the Closing Date pursuant to
Section 5(f) hereof remains true and correct as of such Option
Securities Closing Date.
(2) The favorable opinion of the General Counsel,
any Associate General Counsel or any Senior Managing Counsel
to the Company and/or ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, Counsel to the
Company, in the form and substance satisfactory to Counsel
for the Underwriters, dated the Option Securities Closing
Date, relating to the Option Securities and otherwise in
substantially to the same effect as the opinion required by
Section 5(c) hereof.
(3) The favorable opinion of Shearman & Sterling,
Counsel for the Underwriters, dated the Option Securities
Closing Date, relating to the Option Securities and otherwise
in substantially to the same effect as the opinion required by
Section 5(d) hereof.
(4) A letter from Ernst & Young LLP in the form and
substance satisfactory to you and dated the Option Securities
Closing Date, substantially the same in scope and substance as
the letter furnished to you pursuant to Section 5(e) hereof,
except that the "specified date" in the letter shall be a date
not more than five days prior to such Option Securities
Closing Date.
(i) The Company shall have furnished to you such further
certificates and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you. The Company will furnish you with such conformed copies of
such opinions, certificates, letters and other documents as you shall reasonably
request. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
applicable Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof. Notwithstanding
any such termination, the provisions of Sections 6, 7, 8 and 9 shall remain in
effect.
6. UNDERWRITERS' EXPENSES. If the sale of the Securities
provided for herein is not consummated 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 required to be fulfilled by the Company is not fulfilled,
19
other than by reason of a default by any of the Underwriters or the occurrence
of any event specified in clause (ii), (iii) or (v) of Section 5(b), the Company
will reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. Except as otherwise provided for herein or in the
applicable Terms Agreement, the Underwriters shall pay their own expenses
(including fees and disbursements of counsel) in connection with the offering
and sale of the Securities.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
part of the Registration Statement when such part became effective, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any other prospectus with respect to the Securities, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating or defending against
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by you, or by any Underwriter through you,
specifically for use therein and (ii) such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact that such
Underwriter sold Securities to a person as to whom it shall be established that
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by reference)
or of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required by the
Securities Act if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or liability
of such Underwriter results from an untrue statement or omission of a material
fact contained in the Preliminary Prospectus which was corrected in the
Prospectus (excluding documents incorporated by reference) or in the Prospectus
as then amended or supplemented (excluding documents incorporated by reference).
(b) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company against any losses, claims, damages or liabilities
to which the Company may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any part of the Registration Statement
when such part became effective, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto, or any other prospectus relating to the
Securities, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made
20
therein in reliance upon and in conformity with written information furnished to
the Company by you, or by such Underwriter through you, specifically for use
therein, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
against any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, 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 commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided,
however, that, if the defendants in any such action (including any impleaded
parties) include both the indemnified party and the indemnifying party and
representations of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them, the indemnified party
or parties shall have the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party or parties (and the
reasonable fees and expenses of one such separate counsel shall be paid by the
indemnifying party). No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities,
(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 from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, 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 in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, 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 shall be deemed to be in the
same proportion as the total proceeds from the offering of the Securities
(before deducting expenses) received by the Company bear to the total
compensation or profit (before deducting expenses) received or realized by the
Underwriters from the purchase and resale, or underwriting, of the Securities.
The relative fault 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
untrue statement or
21
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (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 account of
the equitable considerations referred to in the first sentence of this
subsection (d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public 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) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute shall be several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Securities Act; and the obligations of
the Underwriters under this Section 7 shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company (including any person who,
with his consent, 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.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, indemnities and agreements of the Company herein or
in certificates of officers of the Company delivered pursuant hereto, and the
agreements of the several Underwriters contained in Section 7 hereof, shall
remain operative and in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person, or the Company or any of its officers,
directors or any controlling person, and shall survive delivery of and payment
for the Securities.
9. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters participating in an offering of Offered Securities shall fail at
the applicable Closing Date to purchase the Offered Securities which it or they
are obligated to purchase hereunder and under the applicable Terms Agreement
(the "Defaulted Securities"), you shall have the right, within 36 hours
thereafter, to make arrangements satisfactory to you and the Company for one or
more of the nondefaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, you have not
completed such arrangements within such 36-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Offered Securities to be purchased pursuant to such
Terms Agreement, the
22
nondefaulting Underwriters named in such Terms Agreement shall be
obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations bear to the underwriting
obligations of all nondefaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Offered Securities to be purchased pursuant to such Terms Agreement,
the applicable Terms Agreement shall terminate without liability on the
part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default that does not result in the
termination of the applicable Terms Agreement, either you or the Company shall
have the right to postpone the applicable Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 9.
10. NOTICES. All notices or communications hereunder shall be
in writing and if sent to you shall be mailed, delivered, telexed or telecopied
and confirmed to you at the address set forth for that purpose in the Terms
Agreement, or if sent to the Company, shall be mailed, delivered, telexed,
telecopied or telegraphed and confirmed to the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ATTENTION: General Counsel, facsimile number: (216)
689-4121, with a COPY TO Associate General Counsel -- Securities, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇. Notice to any Underwriter pursuant to Section 7 hereof
shall be mailed, delivered, telexed, telecopied or telegraphed and confirmed to
such Underwriter's address as it appears in such Underwriter's questionnaire or
other notice furnished to the Company in writing for the purpose of
communications hereunder. Any party to this Agreement may change such address
for notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
11. PARTIES. This Agreement shall inure solely to the benefit
of and be binding upon the Company and the Underwriters and their respective
successors and the controlling persons, officers and directors referred to in
Section 7 hereof, and no other person will have any right or obligation
hereunder. In all dealings with the Company under this Agreement, you shall act
on behalf of each of the several Underwriters, and any action under this
Agreement taken by you or by any one of you designated in the applicable Terms
Agreement will be binding upon all the Underwriters.
12. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
23
EXHIBIT A
KEYCORP
(an Ohio corporation)
[Title of Securities]
TERMS AGREEMENT
---------------
Dated: ______________, 200_
To: KeyCorp
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Treasurer
Dear Sirs:
We (the "Representative") understand that KeyCorp, an Ohio
corporation (the "Company"), proposes to issue and sell [[$ aggregate principal
amount] of its [senior debt securities] [and] [subordinated [convertible] debt
securities] (the "Debt Securities")] [and] [ shares of its [convertible]]
preferred stock (the "Preferred Stock")] [ depositary shares (the "Depositary
Shares") each representing ______ of a share of preferred stock]. Subject to the
terms and conditions set forth herein or incorporated by reference herein, the
Underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the respective amounts of [Debt Securities] [and] [Preferred Stock]
[Depositary Shares] set forth below.
Principal Principal Principal
Amount of Amount of Amount of
Name of Debt Preferred Depositary
Underwriter Securities Stock Shares
----------------------------------------------------------------------------------------------------------------
Total $ $ $
24
DEBT SECURITIES
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount, plus
accrued interest, if any, [or
amortized original issue discount,
if any,] from ____, 20_.
Purchase price: % of the principal amount, plus
accrued interest, if any, [or
amortized original issue discount,
if any,] from ____, 20_ (payable in
next day funds).
Listing requirement: [None] [NYSE] [OTHER]
Convertible:
Conversion provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
25
Other terms and conditions:
26
PREFERRED STOCK
Title of Preferred Stock:
Principal amount to be issued: $
Currency:
Annual cash dividend rate: % Payable:
Liquidation preference per Share:
Initial public offering price: %, plus accrued interest or
amortized original issue discount,
if any, from ______, 20___.
Purchase price: %, plus accrued interest or
amortized original issue discount,
if any, from ______, 20____ (payable
in next day funds).
Listing requirement: [None] [NYSE] [OTHER]
Convertible:
Initial Conversion price: $___ per share of [Common Stock]
[Preferred Stock] [Capital
Securities].
Other conversion provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
27
DEPOSITARY SHARES
Title of Depositary Shares:
Principal amount to be issued: $
Currency:
Fractional amount of Preferred
Stock represented by
each Depositary Share:
Initial public offering price
per Depositary Share: % of the principal amount, plus
accrued interest [or amortized
original issue discount], if any,
from _______, 20__.
Purchase price per Depositary Share:
(amount equal to the initial public
offering price set forth above, less
$_____ per Depositary Share).
Annual cash dividend amount: $ Payable:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
28
WARRANTS
Title of Warrants:
Number to be issued:
Currency:
Initial public offering price per Warrant: $
Purchase price per Warrant: $
Listing requirement: [None] [NYSE] [OTHER]
Exercisable for:
Exercise price:
Exercise provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Other terms and conditions:
Each Underwriter severally agrees, subject to the terms and
provisions of the above referenced Underwriting Agreement Standard Provisions
which is incorporated herein in its entirety and made a part hereof, to purchase
the principal amount of Offered Securities set forth opposite its name and a
proportionate share of Option Securities to the extent any are purchased.
This Agreement shall be governed by and construed in
accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding of
the agreement between you and the Company, please sign and return to the Company
a counterpart hereof, whereupon this instrument, along with all counterparts and
together with the Underwriting Agreement Standard Provisions, shall be a binding
agreement between the Underwriters named
29
herein and the Company in accordance with its terms and the terms of the
Underwriting Agreement Standard Provisions.
[Representative[s]]
By____________________________________
Acting on behalf of themselves and the
other named Underwriters
Confirmed and accepted as of
the date first above written:
KeyCorp
By_________________________
Name and Title:
30
EXHIBIT I
KEYCORP
[Title of Securities]
DELAYED DELIVERY CONTRACT
-------------------------
-------------------------
[Insert date]
KeyCorp
[Names of Representatives]
Gentlemen:
The undersigned hereby agrees to purchase from KeyCorp (the
"Company"), and the Company agrees to sell to the undersigned, as of the date
hereof, for delivery on _______, 20__ ("Delivery Date") $_________ principal
amount of the Company's [insert title of Security] (the "Securities"), offered
by the Company's Prospectus relating thereto, receipt of a copy of which is
hereby acknowledged, at a purchase price of [ % of the principal amount thereof
plus accrued interest, if any, from ______, 20__,] [and $____ per share of
Preferred Stock] [and $ per Warrant, respectively] to the Delivery Date and on
the further terms and conditions set forth in this contract.
Payment for the Securities that the undersigned has agreed to
purchase for delivery on a Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of __________________ at ______ A.M. on that Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on that Delivery Date in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to that Delivery Date.
The obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on the Delivery Date shall be subject only to the
conditions that (1) investment in the Securities shall not on the Delivery Date
be prohibited under the laws of any jurisdiction to which the undersigned is
subject, which investment the undersigned represents is not prohibited on the
date hereof, and (2) the Company, on or before _______, 20__, shall have sold to
the Underwriters the amount of the Securities to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus mentioned above.
31
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed
Delivery Contracts for an aggregate principal amount of Securities in excess of
$____ and that the acceptance of this contract and any other similar contracts
is in the Company's sole discretion and, without limiting the foregoing, need
not be on a first-come, first-served basis. If this contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the Company
and the undersigned when such counterpart is so mailed or delivered.
32
This contract shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
(Name of Purchaser)
By:_______________________________
(Title of Signatory)
(Address of Purchaser)
Accepted, as of the above date.
KeyCorp
By:___________________________
[Insert title]
33
EXHIBIT II
Pursuant to Section 5(e) of the Underwriting Agreement, the
independent auditors shall furnish letters to the Underwriters to the effect
that:
(1) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the Securities Act and
the applicable published Securities Act Regulations.
(2) In their opinion, the consolidated financial statements
and any supplemental financial information or schedules audited by them and
included or incorporated by reference in the Registration Statement or
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Securities Act or the Exchange Act, as
applicable, and the published rules and regulations thereunder.
(3) On the basis of procedures referred to in such letter,
including a reading of the minute books of the Company since the end of the most
recent fiscal year with respect to which an audit report has been issued,
performing the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information as described in
SAS No. 71, Interim Financial Information, on the unaudited consolidated interim
financial statements of the Company included or incorporated by reference in the
Registration Statement and Prospectus and reading the internal unaudited
consolidated interim financial data, if any, for the period from the date of the
latest balance sheet included or incorporated by reference in the Registration
Statement and Prospectus to the date of the latest available internal interim
financial data (which internal unaudited interim financial data, if any, will be
attached to each such letter to the Underwriters); and making inquiries of
officials of the Company responsible for financial and accounting matters
(including inquiries with respect to whether the unaudited consolidated
financial statements comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters whether the internal unaudited consolidated interim financial statements
are stated on a basis substantially consistent with that of the audited
consolidated financial statements incorporated by reference in the Registration
Statement), nothing caused them to believe that:
(A) (i) any material modifications should be made to the
unaudited consolidated financial statements included in any Quarterly
Reports on Form 10-Q which are incorporated by reference in the
Registration Statement or Prospectus (the "10-Q Financials") for them
to be in conformity with generally accepted accounting principles
applicable to such financial statements and (ii) the 10-Q Financials do
not comply as to form in all material respects with the applicable
requirements of the Exchange Act as it applies to Form 10-Q and the
related published rules and regulations; or
(B) the internal unaudited consolidated interim financial
statements of the Company are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited consolidated financial statements incorporated by
reference in the Registration Statement; or
34
(C) at the date of the latest available internal unaudited
consolidated interim financial statements of the Company, there was any
increase in consolidated long-term debt or any decrease in consolidated
shareholders' equity as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus
except in all instances for decreases that the Prospectus discloses
have occurred or may occur or as may be set forth in such letter; or
(D) for the period from the date of the latest balance sheet
included or incorporated by reference in the Prospectus to the date of
the latest available internal financial statements of the Company,
there was any decrease, as compared with the corresponding period of
the previous year, in consolidated net interest income, consolidated
net interest income after provision for possible loan losses,
consolidated income before taxes or in the total or per common share
amounts of consolidated net income, except in all cases for changes or
decreases that the Prospectus discloses have occurred or may occur or
as may be set forth in such letter;
(E) as of a specified date not more than five days prior to
the date of delivery of such letter to the Representative(s), there was
any increase in consolidated long-term debt or any decrease in
consolidated shareholders' equity as compared with the [amount shown in
the latest balance sheet included or incorporated by reference in the
Prospectus/amount shown in the latest internal unaudited consolidated
interim financial statements], except for any decrease that the
Registration Statement discloses has occurred or may occur.
(4) In addition to their examination referred to in their
reports incorporated by reference in the Registration Statement and Prospectus
and the procedures referred to in (3) above, (a) they have carried out certain
other procedures, not constituting an audit, with respect to certain of the
dollar amounts, percentages and other financial information (in each case to the
extent that such dollar amounts, percentages and other financial information,
either directly or by analysis or computation, are derived from the general
accounting records of the Company and its subsidiaries) which are included or
incorporated by reference in the Prospectus (other than those appearing in the
audited financial statements included therein) and appear in the Prospectus or
incorporated documents, as agreed to by officers of the Company and the
Representative(s), and have found such dollar amounts, percentages and financial
information to be in agreement with the general accounting records of the
Company and its subsidiaries and (b) if any pro forma financial information is
included or incorporated by reference in the Registration Statement and
Prospectus, they have carried out other procedures, not constituting an audit,
with respect to such pro forma financial information and indicated the results
thereof, if requested by the Representative(s) and agreed to by officers of the
Company.
35