Attached files
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8-K - FORM 8-K - TD AMERITRADE HOLDING CORP | c54837e8vk.htm |
EX-4.1 - EX-4.1 - TD AMERITRADE HOLDING CORP | c54837exv4w1.htm |
EX-5.1 - EX-5.1 - TD AMERITRADE HOLDING CORP | c54837exv5w1.htm |
EX-12.1 - EX-12.1 - TD AMERITRADE HOLDING CORP | c54837exv12w1.htm |
EX-10.1 - EX-10.1 - TD AMERITRADE HOLDING CORP | c54837exv10w1.htm |
Exhibit 1.1
TD AMERITRADE HOLDING CORPORATION
$1,250,000,000
$250,000,000 2.950% Senior Notes due 2012
$500,000,000 4.150% Senior Notes due 2014
$500,000,000 5.600% Senior Notes due 2019
$250,000,000 2.950% Senior Notes due 2012
$500,000,000 4.150% Senior Notes due 2014
$500,000,000 5.600% Senior Notes due 2019
UNDERWRITING AGREEMENT
November 20, 2009
Banc of America Securities LLC
Citigroup Global Markets Inc.
Citigroup Global Markets Inc.
Underwriting Agreement
November 20, 2009
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
As Representatives of the several Underwriters
CITIGROUP GLOBAL MARKETS INC.
As Representatives of the several Underwriters
c/o BANC OF AMERICA SECURITIES LLC
One Bryant Park
New York, NY 10036
One Bryant Park
New York, NY 10036
c/o CITIGROUP GLOBAL MARKETS INC.
388 Greenwich Street
New York, New York 10013
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Introductory. TD AMERITRADE Holding Corporation, a Delaware corporation (the
Company), proposes to issue and sell to the several underwriters named in Schedule A (the
Underwriters), acting severally and not jointly, the respective amounts set forth in such
Schedule A of $250,000,000 aggregate principal amount of the Companys 2.950% Notes due 2012 (the
2012 Senior Notes), $500,000,000 aggregate principal amount of the Companys 4.150% Notes
due 2014 (the 2014 Senior Notes) and $500,000,000 aggregate principal amount of the
Companys 5.600% Notes due 2019 (the 2019 Senior Notes and, together with the 2012 Senior
Notes and the 2014 Senior Notes, the Notes). The Notes are guaranteed on an unsecured
basis (the Guarantees) by TD AMERITRADE Online Holdings Corp., a Delaware corporation
(the Guarantor). The Notes and the Guarantees are hereinafter collectively referred to as
the Securities. Banc of America Securities LLC and Citigroup Global Markets Inc. have agreed to
act as representatives of the several Underwriters (in such capacity, the
Representatives) in connection with the offering and sale of the Securities.
The Securities will be issued pursuant to an indenture, dated as of November 19, 2009 (the
Base Indenture), among the Company, the Guarantor and The Bank of New York Mellon Trust
Company, N.A., as trustee (the Trustee). Certain terms of the Securities will be
established pursuant to a supplemental indenture (the Supplemental Indenture) to the Base
Indenture (together with the Base Indenture, the Indenture). The Securities will be
issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company
(the Depositary), pursuant to a Blanket Letter of Representations, to be dated on or
before the Closing Date (as defined in Section 2 below) (the DTC Agreement), among the
Company, the Trustee and the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the
Commission) a registration statement on Form S-3 (File No. 333-163211), which contains a
base prospectus (the Base Prospectus), to be used in connection with the public offering
and sale of debt securities and related guarantees, including the Securities, under the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the
Securities Act), and the offering thereof from time to time in accordance with Rule 415
under the Securities Act. Such registration statement, including the financial statements,
exhibits and schedules thereto, in the form in which it became effective under the Securities Act,
including any required information deemed to be a part thereof at the time of effectiveness
pursuant to Rule 430B under the Securities Act, is called the Registration Statement.
The term Prospectus shall mean the final prospectus supplement relating to the
Securities, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) after
the date and time that this Agreement is executed (the Execution Time) by the parties
hereto. The term Preliminary Prospectus shall mean any preliminary prospectus supplement
relating to the Securities, together with the Base Prospectus, that is first filed with the
Commission pursuant to Rule 424(b). Any reference herein to the Registration Statement, the
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that
are or are deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act prior to 2:55 p.m., New York City time, on November 20, 2009 (the Initial Sale
Time). All references in this Agreement to the Registration Statement, the Preliminary
Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include
any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (EDGAR).
All references in this Agreement to financial statements and schedules and other information
which is contained, included or stated (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, at or prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the Exchange Act), which is or is deemed to be incorporated by reference in the
Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the
Initial Sale Time.
The Company and the Guarantor hereby confirm their agreement with the Underwriters as follows:
Section 1. Representations and Warranties of the Company and the Guarantor
The Company and the Guarantor, jointly and severally, hereby represent, warrant and covenant
to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date
(in each case, a Representation Date), as follows:
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a) Compliance with Registration Requirements. The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company or the
Guarantor, are contemplated or threatened by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition, the Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations
promulgated thereunder (the Trust Indenture Act).
At the respective times the Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration Statement and any amendments
thereto (i) complied and will comply in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the date of the Prospectus and at the
Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, the representations and warranties in
this subsection shall not apply to statements in or omissions from the Registration Statement or
any post-effective amendment or the Prospectus or any amendments or supplements thereto (i) made in
reliance upon and in conformity with information furnished to the Company in writing by any of the
Underwriters through the Representatives expressly for use therein, it being understood and agreed
that the only such information furnished by any Underwriter through the Representatives consists of
the information described as such in Section 8 hereof, or (ii) relating to that part of the
Registration Statement that constitutes the Statement of Eligibility and Qualifications on Form T-1
of the Trustee under the Trust Indenture Act.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the
Commission, complied in all material respects with the Securities Act, and the Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering
of the Securities will, at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
b) Disclosure Package. The term Disclosure Package shall mean (i) the Preliminary
Prospectus dated November 19, 2009, (ii) the issuer free writing prospectuses as defined in Rule
433 of the Securities Act (each, an Issuer Free Writing Prospectus), if any, identified in Annex
I hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale
Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The immediately preceding sentence does
not apply to statements in or omissions from the Disclosure Package (i) based upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the
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only such information furnished by any Underwriter through the Representatives consists of the information
described as such in Section 8 hereof, or (ii) relating to that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualifications on Form T-1 of the Trustee under
the Trust Indenture Act.
c) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Prospectus at the time
they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and did not or 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, in light of the circumstances under which they were made, not misleading.
d) Well-Known Seasoned Issuer. (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3)
of the Securities Act (whether such amendment was by post effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time
the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule
163(c) of the Securities Act) made any offer relating to the Securities in reliance on the
exemption of Rule 163 of the Securities Act, and (iv) as of the Execution Time, each of the Company
and the Guarantor was and is a well known seasoned issuer as defined in Rule 405 of the
Securities Act. The Registration Statement is an automatic shelf registration statement, as
defined in Rule 405 of the Securities Act, that automatically became effective not more than three
years prior to the Execution Time; neither the Company nor the Guarantor has received from the
Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form and neither the Company nor the Guarantor has otherwise
ceased to be eligible to use the automatic shelf registration form.
e) Not an Ineligible Issuer. (i) At the time of filing the Registration Statement and (ii) as
of the Execution Time (with such date substituting for the determination date in Rule 405 for
purposes of this clause (ii)), each of the Company and the Guarantor was not and is not an
ineligible issuer (as defined in Rule 405 of the Securities Act), without taking account of any
determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary
that the Company or the Guarantor be considered an ineligible issuer.
f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Securities under this
Agreement or until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Preliminary Prospectus or the Prospectus the Company
has promptly notified or will promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus
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to eliminate or correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described
as such in Section 8 hereof.
g) Distribution of Offering Material By the Company. Neither the Company nor the Guarantor
has distributed or will distribute, prior to the later of the Closing Date and the completion of
the Underwriters distribution of the Securities, any offering material in connection with the
offering and sale of the Securities other than the Preliminary Prospectus, the Prospectus and any
Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in
Annex I hereto or any electronic road show or other written communications reviewed and consented
to by the Representatives and included on Annex II hereto (collectively, Company Additional
Written Communications). Each such Company Additional Written Communication, when taken
together with the Disclosure Package, did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from the Company Additional
Written Communications based upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter through the
Representatives consists of the information described as such in Section 8 hereof.
h) No Applicable Registration or Other Similar Rights. There are no persons with registration
rights to have any equity or debt securities registered for sale under the Registration Statement,
except for such rights as have been duly waived.
i) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
j) Authorization of the Indenture. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the Company and the Guarantor
and constitutes a valid and binding agreement of the Company and the Guarantor, enforceable against
the Company and the Guarantor in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by general equitable
principles.
k) Authorization of the Securities. The Notes to be purchased by the Underwriters from the
Company are in the form contemplated by the Indenture, have been duly authorized for issuance and
sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor, will constitute valid and binding
obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except as the enforcement thereof may be limited by bankruptcy,
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insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles. The Guarantees are in the form
contemplated by the Indenture, have been duly authorized by the Guarantor for issuance and sale
pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed by the Guarantor and, when the Notes have been authenticated in the
manner provided for in the Indenture and delivered against payment of the purchase price therefor,
will constitute valid and binding obligations of the Guarantor, entitled to the benefits of the
Indenture and enforceable in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable
principles.
l) Description of the Securities and the Indenture. The Securities and the Indenture conform
in all material respects to the descriptions thereof contained in the Disclosure Package and the
Prospectus.
m) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package,
there has been no material adverse change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or otherwise, or in the earnings,
management, business, properties or results of operations, whether or not arising from transactions
in the ordinary course of business, of the Company and its subsidiaries, considered as one entity
(any such change is called a Material Adverse Change).
n) Independent Accountants. Ernst & Young LLP, who have expressed their opinion with respect
to the Companys audited financial statements for the fiscal years ended September 30, 2009, 2008
and 2007 incorporated by reference in the Registration Statement, the Preliminary Prospectus and
the Prospectus, are independent public accountants with respect to the Company as required by the
Securities Act and the Exchange Act.
o) Preparation of the Financial Statements. The financial statements together with the
related notes thereto incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus present fairly in all material respects the consolidated financial
position of the Company and its consolidated subsidiaries as of and at the dates indicated and the
results of their operations and cash flows for the periods specified. Such financial statements
comply as to form in all material respects with the accounting requirements of the Securities Act
and have been prepared in conformity with generally accepted accounting principles as applied in
the United States applied on a consistent basis throughout the periods involved, except as
otherwise noted therein. The selected financial data and the summary financial information
included in the Preliminary Prospectus and the Prospectus present fairly in all material respects
the information shown therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement, the Preliminary Prospectus and the
Prospectus.
p) Incorporation and Good Standing of the Company and its Significant Subsidiaries. Each of
the Company and its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act, and including the Guarantor, the Significant
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Subsidiaries) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has corporate power and authority to own or lease, as the
case may be, and operate its properties and to conduct its business as described in the Disclosure
Package and the Prospectus and, in the case of the Company and the Guarantor, to enter into and perform their respective obligations under this
Agreement. Each of the Company and each Significant Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except for such jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change. All of the issued and outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and, except as disclosed in the Prospectus and the Disclosure Package, are owned by
the Company, directly or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim.
q) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Disclosure Package and the Prospectus under the
caption Capitalization (other than for subsequent issuances, if any, pursuant to employee benefit
plans or stock incentive plans described in the Disclosure Package and the Prospectus or upon
exercise or vesting of outstanding options or other compensatory equity securities described in the
Disclosure Package and the Prospectus, as the case may be).
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.
Neither the Company nor any of its Significant Subsidiaries is (i) in violation or in default (or,
with the giving of notice or lapse of time or both, would be in default) (Default) under its
certificate of incorporation, charter or by-laws or (ii) in Default under any indenture, mortgage,
loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound or to which any of the property
or assets of the Company or any of its Significant Subsidiaries is subject (each, an Existing
Instrument) or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree
of any court, regulatory body, administrative agency, governmental body, arbitrator or
self-regulatory organization or other authority having jurisdiction over the Company or any of its
Significant Subsidiaries or any of its or their properties, as applicable, except, with respect to
clauses (ii) and (iii) only, for such Defaults or violations as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change. The Companys and the
Guarantors execution, delivery and performance of this Agreement and consummation of the
transactions contemplated hereby, by the Disclosure Package and by the Prospectus (i) have been
duly authorized by all necessary corporate action and will not result in any Default under the
certificate of incorporation, charter or by laws of the Company, the Guarantor or any of their
subsidiaries, (ii) except as disclosed in the Prospectus and the Disclosure Package, will not
conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, the Guarantor or any of their subsidiaries pursuant to,
or require the consent of any other party to, any Existing Instrument, and (iii) will not result in
any violation of any statute, law, rule, regulation, judgment, order or decree applicable to the
Company, the Guarantor or any of their respective subsidiaries of any court, regulatory body,
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administrative agency, governmental body, arbitrator or self-regulatory organization or other
authority having jurisdiction over the Company, the Guarantor or any of their subsidiaries or any
of its or their properties, except, with respect to clauses (ii) and (iii) only, for such Defaults
or violations as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change or have a material adverse effect on the ability of the Company or the
Guarantor to perform their respective obligations under or consummate the transactions contemplated
by this Agreement, the Indenture or the Securities. No consent, approval, authorization or other
order of, or registration or filing with, any court or other governmental or regulatory authority
or self-regulatory organization or regulatory authority or agency is required for the Companys or
the Guarantors execution, delivery and performance of this Agreement or consummation of the
transactions contemplated hereby, by the Disclosure Package or by the Prospectus, except such as
have been or will be obtained or made by the Company and the Guarantor under the Securities Act,
the Exchange Act, the Trust Indenture Act, applicable state securities or blue sky laws and from
the Financial Industry Regulatory Authority (the FINRA) under the Conduct Rules. As used herein,
a Debt Repayment Triggering Event means any event or condition which gives, or with the giving of
notice or lapse of time or both would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holders behalf) issued by the Company or the Guarantor,
the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or the Guarantor or any of their subsidiaries.
r) No Material Actions or Proceedings. Except as disclosed in the Prospectus and the
Disclosure Package, there are no actions, suits or proceedings pending or, to the knowledge of the
Company and the Guarantor, threatened before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, or before or by any
self-regulatory organization against or affecting the Company or any of its subsidiaries, which, if
determined adversely to the Company or the Guarantor, would reasonably be expected to result in a
Material Adverse Change or have a material adverse effect on the ability of the Company to perform
its obligations under this Agreement, the Indenture and the Securities.
s) Labor Matters. No material dispute with the employees of the Company or any of its
subsidiaries exists that would, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change.
t) Intellectual Property Rights. Except as set forth in the Disclosure Package and the
Prospectus, to the knowledge of the Company and the Guarantor, the Company or its subsidiaries own
or possess a valid right to use all patents, trademarks, service marks, trade names, copyrights,
trade secrets, know-how and other intellectual property (collectively, the Intellectual Property)
used by the Company or its subsidiaries in, and material to, the conduct of the Companys or its
subsidiaries business as now conducted or as proposed in the Disclosure Package and the Prospectus
to be conducted. Except as set forth in the Disclosure Package and the Prospectus, (i) to the
knowledge of the Company and the Guarantor, there is no material infringement by third parties of
any of the Companys Intellectual Property material to the conduct of the Companys business as now
conducted, and (ii) there are no legal or governmental actions, suits, proceedings or claims
pending or, to the knowledge of the Company, threatened, against the Company (A) challenging the
Companys rights in or to any Intellectual Property, (B) challenging the validity or scope of any
Intellectual Property owned by
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the Company or (C) alleging that the operation of the Companys
business as now conducted infringes or otherwise violates the Intellectual Property of any third
party, which would, in the case of each of the foregoing clauses (A), (B) and (C), individually or
in the aggregate, reasonably be expected to result in a Material Adverse Change.
u) All Necessary Permits, etc. The Company and each Significant Subsidiary possess such valid
and current certificates, authorizations, permits, licenses, approvals, consents, registrations and
other authorizations issued by the appropriate self regulatory or state, federal or foreign
regulatory agencies, authorities or bodies necessary to conduct their respective businesses as
presently conducted, except where the failure to possess would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change, and neither the Company
nor any Significant Subsidiary has received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate, authorization, permit, license,
approval, consent, registration or other authorization which, if the subject of an unfavorable
decision, ruling or finding, would, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change. Each employee of the Company who is required to be registered
or licensed as a registered representative, investment advisor representative, sales person or an
equivalent with any regulatory body, governmental body, self-regulatory agency, or other authority
having jurisdiction is duly registered and such registration is in full force and effect, except
where the failure of such employee to be registered or licensed would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change.
v) Title to Properties. Except as otherwise disclosed in the Disclosure Package and the
Prospectus, and except as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Change, the Company and each of the Significant Subsidiaries has good and
marketable title to all the properties and assets reflected as owned in the financial statements
referred to in Section 1(o) above (or elsewhere in the Disclosure Package and the Prospectus), in
each case free and clear of any security interests, mortgages, liens, encumbrances, equities,
claims and other defects. The real property, improvements, equipment and personal property held
under lease by the Company or any Significant Subsidiary are held under valid and enforceable
leases, except as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Change.
w) Tax Law Compliance. The Company and its subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns in a timely manner and have paid all
taxes required to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except for any taxes, assessments, fines or
penalties as may be being contested in good faith and by appropriate proceedings, except where a
default to make such filings or payments would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change.
x) Dividends. No Significant Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other distribution on such
Significant Subsidiarys capital stock, from repaying to the Company any loans or advances to such
Significant Subsidiary from the Company or from transferring any of such Significant Subsidiarys
property or assets to the Company or any other Significant
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Subsidiary of the Company, except as described in or contemplated by the Disclosure Package and the Prospectus.
y) Broker-Dealer Subsidiaries. Each of the subsidiaries listed on Schedule B is duly
registered as a broker-dealer with the Commission and with each state in which it is required to be registered, except for such states where the failure to so register would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Change, is a member in
good standing of each self-regulatory organization where its business so requires and has conducted
its business in compliance in all material respects with the rules and regulations of relevant
self-regulatory agencies and the applicable provisions of the Exchange Act, including the net
capital requirements and the customer protection requirements thereof.
z) Investment Adviser Subsidiaries. Each of the subsidiaries listed on Schedule C is duly
registered as an investment adviser with the Commission, is registered as an investment adviser
with each state where its business so requires, except for such states where the failure to so
register would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change, and has conducted its business in compliance in all material aspects with
applicable requirements of the Investment Advisers Act and such other applicable laws.
aa) Forms BD and ADV. The Company has delivered or made available to the Representatives, a
true and complete copy of the Companys and its subsidiaries currently effective Forms BD and ADV
(including Part II) as filed with the Commission. The information contained in such forms and
reports is (or will be, in the case of any forms and reports filed after the date of this
Agreement), complete and accurate in all material respects and was complete and accurate in all
material respects as of the time of filing.
bb) Disciplinary Proceedings or Orders. Except as disclosed in the Prospectus and the
Disclosure Package, and except for such proceedings or orders as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change, neither the Company nor
any of its subsidiaries listed on Schedule B or Schedule C nor any of their respective officers,
directors, employees or affiliates has been the subject of any disciplinary proceedings or orders
of any governmental entity arising under applicable laws or regulations which would be required to
be disclosed on Forms BD or ADV except as disclosed thereon, and no such disciplinary proceeding or
order is pending or, to the knowledge of the Company, threatened, nor, to the knowledge of the
Company, do grounds exist for any such material action by any governmental entity; and except as
disclosed on such Form BD or ADV, neither the Company nor any of its subsidiaries listed on
Schedule B or Schedule C nor any of their respective officers, directors or employees has been
enjoined by the order, judgment or decree of any governmental entity from engaging in or continuing
any conduct or practice in connection with any Company activity or in connection with the purchase
or sale of any security.
cc) Policies and Procedures. Each of the subsidiaries listed on Schedule B or Schedule C has,
where required by applicable law, adopted written policies and procedures that, in each case, are
reasonably designed to detect and prevent any material violations under applicable securities laws.
There has been no material non-compliance by such subsidiaries with respect to the foregoing
requirements or their own internal procedures or policies related to the foregoing, other than
those (i) that have been satisfactorily remedied, (ii) have been disclosed in
10
the Disclosure Package and the Prospectus, or (iii) would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change.
dd) Company Not an Investment Company. Each of the Company and the Guarantor is not, and
solely after giving effect to the receipt of payment for the Securities and the application of the proceeds thereof as contemplated under the caption Use of Proceeds in the
Preliminary Prospectus and the Prospectus will not be, as an investment company within the
meaning of the Investment Company Act of 1940, as amended.
ee) Insurance. Except as disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, each of the Company and its subsidiaries maintains insurance covering its
properties, operations, personnel and businesses which insures against such losses and risks as are
adequate in accordance with its reasonable business judgment to protect the Company and its
subsidiaries and their businesses.
ff) No Price Stabilization or Manipulation. Neither the Company nor the Guarantor has taken
or will take any action designed to or that would be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the Company to facilitate the sale or
resale of the Securities.
gg) No Unlawful Contributions or Other Payments. None of the Company, any of its subsidiaries
or, to the knowledge of the Company and the Guarantor, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or has taken any action that would
result in a violation by such persons of the FCPA, including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any foreign official (as
such term is defined in the FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the FCPA, and the Company, its
subsidiaries and, to the knowledge of the Company and the Guarantor, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
FCPA means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
hh) No Conflict with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines issued, administered or enforced by any governmental agency (collectively, the
Money Laundering Laws) and no action, suit or proceeding by or before any court or
governmental agency, authority or regulatory body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of
the Company and the Guarantor, threatened.
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ii) No Conflict with OFAC Laws. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company and the Guarantor, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and the Company will not use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds, to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
jj) Compliance with Environmental Laws. Except as otherwise disclosed in the Disclosure
Package and the Prospectus, the Company and its subsidiaries (i) are in compliance with all
applicable federal, state, local and foreign laws and regulations relating to the protection of
human health, the environment or hazardous or toxic substances or regulated wastes, pollutants or
contaminants (collectively, Environmental Laws), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Change. There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to third parties) which
would, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Change, except as otherwise disclosed in the Disclosure Package and the Prospectus.
kk) ERISA Compliance. The Company and its subsidiaries and any employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, ERISA)) established
or maintained by the Company, its subsidiaries or their ERISA Affiliates (as defined below) are in
compliance in all material respects with ERISA. ERISA Affiliate means, with respect to
the Company or a subsidiary, any member of any group of organizations described in Sections 414(b),
(c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the Internal Revenue
Code), of which the Company or such subsidiary is a member. No reportable event (as defined
under ERISA) has occurred or is reasonably expected to occur with respect to any employee benefit
plan established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates.
No employee benefit plan established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates, if such employee benefit plan were terminated, would have any amount of
unfunded benefit liabilities (as defined under ERISA). Neither the Company, its subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any employee benefit plan,
(ii) Sections 412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B of the
Internal Revenue Code with respect to the excise tax imposed thereunder. Each employee benefit
plan established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates
that is intended to be qualified under Section 401(a) of the Internal Revenue Code has received a
favorable
12
determination letter from the Internal Revenue Service and nothing has occurred, whether
by action or failure to act, which is reasonably likely to cause disqualification of any such
employee benefit plan under Section 401(a) of the Internal Revenue Code.
ll) Sarbanes-Oxley Compliance. The Company is in compliance, and will comply, in all material
respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith, including Section 402 related to loans and
Sections 302 and 906 related to certifications.
mm) Companys Accounting System. The Company and its subsidiaries maintain systems of
internal control over financial reporting, as such term is defined in Rule 13a-15(f) under the
Exchange Act, that comply with the requirements of the Exchange Act.
nn) Internal Controls and Procedures. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with managements general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (C) access to assets is permitted only
in accordance with managements general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
oo) Disclosure Controls and Procedures. The Company and its subsidiaries maintain disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act); such
disclosure controls and procedures are effective.
pp) No Material Weakness in Internal Controls. Except as disclosed in the Disclosure Package
and the Prospectus or in any document incorporated by reference therein, since the end of the
Companys most recent audited fiscal year, there has been (i) no material weakness in the Companys
internal control over financial reporting (whether or not remediated) and (ii) no change in the
Companys internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Companys internal control over financial reporting.
Any certificate signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters in connection with the offering and sale of the Securities and the
transactions contemplated by this Agreement shall be deemed to be a representation and warranty by
the Company to each Underwriter as to the matters set forth therein.
Section 2. Purchase, Sale and Delivery of the Securities.
a) The Securities. The Company agrees to issue and sell to the several Underwriters,
severally and not jointly, all of the Securities upon the terms herein set forth. On the basis of
the representations, warranties and agreements herein contained, and upon the terms but subject to
the conditions herein set forth, each Underwriter agrees, severally and not jointly, to purchase
from the Company (i) the aggregate principal amount of the 2012 Senior Notes, (ii) the aggregate
principal amount of the 2014 Senior Notes and (iii) the aggregate principal amount of the 2019
Senior Notes, as applicable, in each case as set forth opposite their names on Schedule A at a
13
purchase price of 99.547%, 99.451% and 99.212%, respectively, of their principal amount, payable on
the Closing Date.
b) The Closing Date. Delivery of certificates for the Securities in global form to be
purchased by the Underwriters and payment therefor shall be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY (or such other place as may
be agreed to by the Company and the Representatives) at 9:00 a.m., New York City time, on November
25, 2009, or such other time and date as the Underwriters and the Company shall mutually agree (the
time and date of such closing are called the Closing Date).
c) Public Offering of the Securities. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Securities as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
d) Payment for the Securities. The Underwriters shall make payment for the Securities at the
Closing Date by wire transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Securities that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Securities to be purchased
by any Underwriter whose funds shall not have been received by the Representatives by the Closing
Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter
from any of its obligations under this Agreement.
e) Delivery of the Securities. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters certificates for the Securities at the
Closing Date, against the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The Securities shall be issued in book-entry only form
and shall be represented by one or more global certificates in such denominations and registered in
such names and denominations as the Representatives shall have requested at least two full business
days prior to the Closing Date and shall be made available for inspection on the business day
preceding the Closing Date at a location in New York City, as the Representatives may designate.
Time shall be of the essence, and delivery at the time and place specified in this Agreement is a
further condition to the obligations of the Underwriters.
Section 3. Covenants of the Company and the Guarantor.
The Company and the Guarantor covenant and agree with each Underwriter as follows:
a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will
promptly notify the Representatives of (i) the effectiveness during the Prospectus Delivery Period
(as defined below) of any post effective amendment to the Registration Statement or the filing of
any supplement or amendment to the Preliminary
14
Prospectus or the Prospectus, (ii) the receipt of
any comments from the Commission during the Prospectus Delivery Period, (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment or supplement to the
Preliminary Prospectus or the Prospectus or for additional information relating to the Preliminary
Prospectus or the Prospectus, and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of the Preliminary
Prospectus or the Prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings of the Preliminary Prospectus
and the Prospectus necessary pursuant to Rule 424 of the Securities Act and will take such steps as
it deems necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus
transmitted for filing under Rule 424 of the Securities Act was received for filing by the
Commission and, in the event that it was not, it will promptly file such document. The Company
will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
b) Filing of Amendments. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Securities by an Underwriter or dealer, including in circumstances where such requirement
may be satisfied pursuant to Rule 172 of the Securities Act (the Prospectus Delivery Period), the
Company will give the Representatives notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b) of the Securities Act), or any
amendment or supplement or revision to the Disclosure Package or the Prospectus, whether pursuant
to the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies
of any such documents a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object; provided, however, that with respect to any proposed
amendment or supplement resulting solely from the incorporation by reference of any report to be
filed under the Exchange Act following the Closing Date, the Representatives shall be deemed to
have consented to the filing or use of such report if they do not respond to the Company within 24
hours of being provided such report.
c) Delivery of Registration Statements. Upon request, the Company will deliver to the
Representatives, without charge, a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
d) Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any
15
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
e) Continued Compliance with Securities Laws. The Company will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus during the Prospectus Delivery Period. If at any time during the Prospectus Delivery
Period, any event shall occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement in
order that the Registration Statement 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 or to amend or supplement the Disclosure Package or the Prospectus in order
that the Disclosure Package or the Prospectus, as the case may be, 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, in light of the circumstances existing at the Initial Sale Time or at the time
it is delivered or conveyed to a purchaser, not misleading, 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 Disclosure Package or the Prospectus in order to comply with the requirements of any
law, the Company will (1) notify the Representatives of any such event, development or condition
and (2) promptly prepare and file with the Commission, subject to Section 3(b) hereof, such
amendment or supplement as may be necessary to correct such statement or omission or to make the
Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the
Company will furnish to the Underwriters, without charge, such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
f) Blue Sky Compliance. The Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Securities for sale under (or obtain exemptions from
the application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Securities. The Company
shall not be required to qualify to transact business or to take any action that would subject it
to general service of process in any such jurisdiction where it is not presently qualified or where
it would be subject to taxation as a foreign business. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its reasonable best efforts to
obtain the withdrawal thereof at the earliest possible moment.
g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities
sold by it in the manner described under the caption Use of Proceeds in the Preliminary
Prospectus and the Prospectus.
16
h) Depositary. The Company will cooperate with the Underwriters and use its reasonable best
efforts to permit the Securities to be eligible for clearance and settlement through the facilities
of the Depositary.
i) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the
date hereof and ending on the Closing Date, the Company and its subsidiaries will not, without the
prior written consent of the Representatives (which consent may be withheld at the sole discretion
of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell,
pledge, transfer or establish an open put equivalent position within the meaning of Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file
any registration statement under the Securities Act in respect of, any debt securities of the
Company or its subsidiaries similar to the Securities or securities exchangeable for or convertible
into debt securities similar to the Securities (other than as contemplated by this Agreement with
respect to the Securities).
j) Final Term Sheet. The Company will prepare a final term sheet containing only a
description of the Securities, in a form approved by the Underwriters and attached as Exhibit
A hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within
the time required by such rule (such term sheet, the Final Term Sheet). Any such Final
Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
k) Permitted Free Writing Prospectuses. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the Representatives, it will not make,
any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or
that would otherwise constitute a free writing prospectus (as defined in Rule 405 of the
Securities Act) required to be filed by the Company with the Commission or retained by the Company
under Rule 433 of the Securities Act; provided that the prior written consent of the
Representatives shall be deemed to have been given in respect of any Issuer Free Writing
Prospectuses included in Annex I to this Agreement. Any such free writing prospectus consented to
or deemed to be consented to by the Representatives is hereinafter referred to as a Permitted
Free Writing Prospectus. The Company agrees that (i) it has treated and will treat, as the
case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii)
has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the
Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping. The Company consents to the use by any
Underwriter of a free writing prospectus that (a) is not an issuer free writing prospectus as
defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the
Securities or their offering, (ii) information permitted by Rule 134 under the Securities Act or
(iii) information that describes the final terms of the Securities or their offering and that is
included in the Final Term Sheet of the Company contemplated in Section 3(k).
l) Registration Statement Renewal Deadline. If immediately prior to the third anniversary
(the Renewal Deadline) of the initial effective date of the Registration Statement, any of the
Securities remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file,
if it has not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Securities, in a form reasonably satisfactory to the
17
Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company
will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration
statement relating to the Securities, in a form reasonably satisfactory to the Representatives, and
will use its reasonable best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all
other action reasonably necessary or appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the expired registration statement relating to the
Securities. References herein to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be.
m) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time
during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant
to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new
registration statement or post effective amendment on the proper form relating to the Securities,
in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to
cause such registration statement of post effective amendment to be declared effective and (iv)
promptly notify the Representatives of such effectiveness. The Company will take all other action
reasonably necessary or appropriate to permit the public offering and sale of the Securities to
continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2)
notice or for which the Company has otherwise become ineligible. References herein to the
Registration Statement shall include such new registration statement or post effective amendment,
as the case may be.
n) Filing Fees. The Company agrees to pay the required Commission filing fees relating to the
Securities within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the
Securities Act.
o) No Manipulation of Price. Neither the Company nor the Guarantor will take any action
designed to cause or result in, or that has constituted or might reasonably be expected to
constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Securities.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees and
expenses incurred in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation (i) all expenses incident
to the issuance and delivery of the Securities (including all printing and engraving costs), (ii)
all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the
Securities, (iii) all fees and expenses of the Companys counsel, independent public or certified
public accountants and other advisors to the Company, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of
experts), each Issuer Free Writing Prospectus, the Preliminary
18
Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and
the Securities, (v) all filing fees, reasonable attorneys fees and expenses incurred by the
Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions
from the qualification or registration of) all or any part of the Securities for offer and sale under the state securities or blue sky laws,
and, if requested by the Representatives, preparing a Blue Sky Survey or memorandum, and any
supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions
(provided that the amount of such survey or memorandum shall not exceed $10,000), (vi) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the FINRA of the terms of the sale of the Securities
(provided that any fees of such counsel shall not exceed $10,000), (vii) the fees and expenses of
the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (viii) any fees payable in connection with the
rating of the Securities with the ratings agencies, (ix) all fees and expenses (including
reasonable fees and expenses of counsel) of the Company in connection with approval of the
Securities by the Depositary for book-entry transfer, (x) all other fees, costs and expenses
referred to in Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and
expenses incurred in connection with the performance of its obligations hereunder for which
provision is not otherwise made in this Section. Except as provided in this Section 4 and Sections
6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities as provided herein on the Closing
Date shall be subject to the accuracy of the representations and warranties on the part of the
Company set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of
the Closing Date as though then made and to the timely performance by each of the Company and the
Guarantor of its covenants and other obligations hereunder, and to each of the following additional
conditions:
a) Effectiveness of Registration Statement. The Registration Statement has become effective
under the Securities Act and on the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or, to the knowledge of the Company and the
Guarantor, threatened by the Commission, any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of counsel to the
Underwriters and the Company shall not have received from the Commission any notice pursuant to
Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement
form. The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in
accordance with Rule 424(b) of the Securities Act (or any required post-effective amendment
providing such information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
b) Accountants Comfort Letter. On the date hereof, the Representatives shall have received
from Ernst & Young LLP, independent public accountants for the Company, a letter dated the date
hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives with respect to the audited and unaudited financial statements
19
and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the
Prospectus.
c) Bring-down Comfort Letter. On the Closing Date, the Representatives shall have received
from Ernst & Young LLP, independent public accountants for the Company, a letter dated such date,
in form and substance reasonably satisfactory to the Representatives, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this
Section 5, except that the specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the Closing Date.
d) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (b) of this Section 5 which is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any nationally recognized
statistical rating organization as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
e) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have
received the opinions of (i) Sidley Austin LLP, counsel for the Company, dated as of such Closing
Date, the form of which is attached as Exhibit B; (ii) Kutak Rock LLP, counsel for TD
AMERITRADE Clearing, Inc. a Nebraska corporation, the form of which is attached as Exhibit
C, and (iii) David L. Lambert, Deputy General Counsel Finance/Securities of the Company, the
form of which is attached hereto as Exhibit D.
f) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall
have received the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, dated as of such Closing Date, in form and substance reasonably satisfactory to the
Representatives, with respect to such matters as may be reasonably requested by the Underwriters.
g) Officers Certificate. On the Closing Date, the Representative shall have received a
written certificate executed by the Chief Executive Officer or an Executive Vice President of the
Company and the Guarantor and the Chief Financial Officer or Chief Accounting Officer of each of
the Company and the Guarantor, dated as of such Closing Date, to the effect that:
20
(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or, to the
knowledge of such officers, threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration
statement form;
(iii) the representations and warranties of the Company and the Guarantor set forth in
Section 1 of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(iv) each of the Company and the Guarantor has complied with all the agreements
hereunder and satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date.
h) Additional Documents. On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information and documents as they may reasonably require
for the purposes of enabling them to pass upon the issuance and sale of the Securities as
contemplated herein, or in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination.
Section 6. Reimbursement of Underwriters Expenses. If this Agreement is terminated
by the Representatives pursuant to Section 5 or 11, or if the sale to the Underwriters of the
Securities on the Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any provision hereof, the
Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as
have terminated this Agreement with respect to themselves), severally, upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and sale of the Securities,
including but not limited to reasonable fees and disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement shall not become
effective until the execution of this Agreement by the parties hereto.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Company and the Guarantor agree, jointly and
severally, to indemnify and hold harmless each Underwriter, its directors, officers, employees and
agents, and each person, if any, who controls any Underwriter within the
21
meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to
which such Underwriter or such director, officer, employee, agent or controlling person may become
subject, under the Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any amendment thereto, or
the omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) upon any untrue statement or
alleged untrue statement of a material fact contained in any Company Additional Written
Communications, any Issuer Free Writing Prospectus, or any other materials reviewed and consented
to by the Representatives and included on Annex III hereto (collectively, Company Additional
Communications), the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading; and to reimburse each Underwriter and each such director, officer, employee, agent and
controlling person for any and all expenses (including the reasonable fees and disbursements of
counsel chosen by the Representatives) as such expenses are reasonably incurred by such Underwriter
or such director, officer, employee, agent or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the foregoing indemnity agreement shall not apply to any loss,
claim, damage, liability or expense to the extent, but only to the extent, arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration Statement, any
Company Additional Written Communications, any Company Additional Communications, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company and the Guarantor, each of
their respective directors, officers and employees, and each person, if any, who controls the
Company or the Guarantor within the meaning of the Securities Act or the Exchange Act, against any
loss, claim, damage, liability or expense, as incurred, to which the Company or the Guarantor or
any such director, officer or controlling person may become subject, under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in
respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, or any
amendment thereto, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission
22
therefrom of a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, 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 in the Registration Statement, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with written information furnished to the Company by any Underwriter through
the Representatives expressly for use therein; and to reimburse the Company, or any such director,
officer or controlling person for any legal and other expense reasonably incurred by the Company,
or any such director, officer or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. The
Company hereby acknowledges that the only information furnished to the Company by any Underwriter
through the Representatives expressly for use in the Registration Statement, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth in (i) in the last paragraph of the cover page regarding
delivery of the Securities and (ii) under the heading Underwriting (x) the list of Underwriters
and their respective participation in the sale of the Securities (y) the fourth paragraph related
to concessions and reallowances and (z) the ninth, tenth and eleventh paragraphs related to
stabilization, syndicate covering transactions and penalty bids in the Preliminary Prospectus and
the Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any
liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, such indemnified party shall have the right to employ its own counsel in any
such action and to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has
been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has
failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified
party; or (iii) the named parties to any such action (including any impleaded parties) include both
such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and
such indemnified party shall have reasonably concluded that either (x) there may be one or more
legal defenses available to it which are different from or additional to those available to the
indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between
such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it
being understood, however, that the indemnifying party shall not, in connection with any one such
action or separate but
23
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to a single firm of local counsel) for all such
indemnified parties, which firm shall be designated in writing by the Representatives and that all
such reasonable fees and
expenses shall be reimbursed as they are incurred). Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying partys election so to assume the
defense of such action and approval by the indemnified party of counsel (which approval shall not
be unreasonably withheld, conditioned or delayed), the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless the indemnified party shall
have employed separate counsel in accordance with the proviso to the next preceding sentence, in
which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying
party.
(d) Settlements. The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party.
Section 9. Contribution. If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantor, on the one hand, and the Underwriters, on the other
hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Guarantor, on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantor, on the one hand, and the Underwriters,
on the other hand, in connection with the offering of the Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting expenses) received by the
Company, and the total underwriting discount received by the Underwriters, in each case as set
forth on the front cover page of the Prospectus bear to the aggregate initial public offering price
of the Securities as set forth on such cover. The relative fault of the Company and the Guarantor,
on the one hand, and
24
the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the
Company, on the one
hand, or the Underwriters, on the other hand, and the parties relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Securities underwritten by it and distributed to the public. 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 to contribute pursuant to this Section 9 are
several, and not joint, in proportion to their respective underwriting commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each director, officer,
employee and agent of an Underwriter and each person, if any, who controls an Underwriter within
the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of the Company and the
Guarantor who signed the Registration Statement, and each person, if any, who controls the Company
or the Guarantor with the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Company.
Section 10. Default of One or More of the Several Underwriters. If, on the Closing
Date, any one or more of the several Underwriters shall fail or refuse to purchase Securities that
it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of
the Securities, which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase does not exceed 10% of the aggregate principal amount of the Securities to be purchased on
such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate
principal amounts of such Securities set forth opposite their respective names on Schedule A bears
to the aggregate principal amount of such Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase such Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase
such Securities and the aggregate principal amount of such Securities with respect to which such
default occurs exceeds 10% of the aggregate principal amount of Securities to be purchased on such
date, and arrangements reasonably satisfactory to the Representatives and the Company for the
purchase of such Securities are not made within 48
25
hours after such default, this Agreement shall
terminate without liability of any party to any other party except that the provisions of Sections
4, 8, 9 and 17 shall at all times be effective and shall survive such termination. In any such
case, either the Representatives or the Company shall
have the right to postpone the Closing Date, but in no event for longer than seven days in
order that the required changes, if any, to the Registration Statement, any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may
be effected.
As used in this Agreement, the term Underwriter shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Companys securities shall have been suspended or limited by
the Commission or the Nasdaq Global Select Market, or trading in securities generally on either the
Nasdaq Stock Market, the New York Stock Exchange or the Nasdaq Global Select Market shall have been
suspended or limited, or minimum or maximum prices shall have been generally established on any of
such stock exchanges by the Commission or the FINRA; (ii) a general banking moratorium shall have
been declared by any of federal or New York authorities; (iii) there shall have occurred any
outbreak or escalation of national or international hostilities or any crisis or calamity involving
the United States, or any change in the United States or international financial markets, as in the
judgment of the Representatives is material and adverse and makes it impracticable or inadvisable
to market the Securities in the manner and on the terms described in the Disclosure Package or the
Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the
Representatives there shall have occurred any Material Adverse Change; or (v) there shall have
occurred a material disruption in commercial banking or securities settlement or clearance
services. Any termination pursuant to this Section 11 shall be without liability of any party to
any other party except as provided in Sections 4 and 6 hereof, and provided further that Sections
4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect.
Section 12. No Fiduciary Duty. The Company and the Guarantor acknowledge and agree
that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arms length commercial transaction between the Company and the Guarantor, on
the one hand, and the several Underwriters, on the other hand, and the Company and the Guarantor
are capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in connection with the offering
and sale of the Securities contemplated hereby, and the process leading to such transaction, each
Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or
fiduciary of the Company or the Guarantor or their affiliates, stockholders, creditors or employees
or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Company or the Guarantor with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company or the Guarantor on other matters) and
no Underwriter has any obligation to the Company or the
26
Guarantor with respect to the offering
contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several
Underwriters and their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the
Company and the Guarantor and that the several Underwriters have no obligation to disclose any
of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company and the Guarantor have consulted their own legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantor and the several Underwriters with respect to the subject matter
hereof. Each of the Company and the Guarantor hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company or the Guarantor may have against the several
Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
Section 13. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company and the
Guarantor, and their respective officers and of the several Underwriters set forth in or made
pursuant to this Agreement (i) will remain operative and in full force and effect, regardless of
any (A) investigation, or statement as to the results thereof, made by or on behalf of any
Underwriter, the officers or employees of any Underwriter, or any person controlling the
Underwriter, the Company, the Guarantor the officers or employees of the Company or the Guarantor,
or any person controlling the Company or the Guarantor, as the case may be or (B) acceptance of the
Securities and payment for them hereunder and (ii) will survive delivery of and payment for the
Securities sold hereunder and any termination of this Agreement.
Section 14. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Banc of America Securities LLC
One Bryant Park
New York, NY 10036
Facsimile: 212-901-7881
Attention: High Grade Debt Capital Markets Transaction Management/Legal
One Bryant Park
New York, NY 10036
Facsimile: 212-901-7881
Attention: High Grade Debt Capital Markets Transaction Management/Legal
and
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Facsimile: (212) 816-7912
Attention: General Counsel
388 Greenwich Street
New York, New York 10013
Facsimile: (212) 816-7912
Attention: General Counsel
27
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Facsimile: 917-777-2000
Attention: Gregory Fernicola, Esq.
Four Times Square
New York, NY 10036
Facsimile: 917-777-2000
Attention: Gregory Fernicola, Esq.
If to the Company or the Guarantor:
TD AMERITRADE Holding Corporation
6940 Columbia Gateway Drive
Columbia, Maryland 21046
Facsimile: (443) 539-2209
Attention: General Counsel
6940 Columbia Gateway Drive
Columbia, Maryland 21046
Facsimile: (443) 539-2209
Attention: General Counsel
with a copy to:
Sidley Austin LLP
One South Dearborn
Chicago, IL 60603
Facsimile: (312) 853-7036
Attention: Lisa Reategui, Esq.
One South Dearborn
Chicago, IL 60603
Facsimile: (312) 853-7036
Attention: Lisa Reategui, Esq.
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the directors, officers, employees, agents and controlling persons referred to in
Sections 8 and 9, and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term successors shall not include any purchaser of the
Security as such from any of the Underwriters merely by reason of such purchase.
Section 16. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 17. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
28
Section 18. General Provisions. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit. The Section headings herein are for the convenience of the parties only and shall
not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
[Signatures follow on next page]
29
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, TD AMERITRADE HOLDING CORPORATION |
||||
By: | /s/ Fredric J. Tomczyk | |||
Name: | Fredric J. Tomczyk | |||
Title: | President and Chief Executive Officer | |||
TD AMERITRADE ONLINE HOLDINGS CORP. |
||||
By: | /s/ Fredric J. Tomczyk | |||
Name: | Fredric J. Tomczyk | |||
Title: | President |
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as of the date first above written. |
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
CITIGROUP GLOBAL MARKETS INC.
Acting as Representatives of the several Underwriters named in the attached Schedule A. |
||||
By: | Banc of America Securities LLC | |||
By: | /s/ Kaivan Michael Shakib | |||
Name: | Kaivan Michael Shakib | |||
Title: | Managing Director | |||
By: | Citigroup Global Markets Inc. | |||
By: | /s/ Chandra M. Harjani | |||
Name: | Chandra M. Harjani | |||
Title: | Vice President |
SCHEDULE A
Aggregate Principal | Aggregate Principal | Aggregate Principal | ||||||||||
Amount of 2012 | Amount of 2014 | Amount of 2019 | ||||||||||
Senior Notes to be | Senior Notes to be | Senior Notes to be | ||||||||||
Underwriters | Purchased | Purchased | Purchased | |||||||||
Banc of America Securities LLC |
$ | 83,750,000 | $ | 167,500,000 | $ | 167,500,000 | ||||||
Citigroup Global Markets Inc. |
83,750,000 | 167,500,000 | 167,500,000 | |||||||||
TD Securities (USA) LLC |
20,000,000 | 40,000,000 | 40,000,000 | |||||||||
Barclays Capital Inc. |
20,000,000 | 40,000,000 | 40,000,000 | |||||||||
J.P. Morgan Securities Inc. |
20,000,000 | 40,000,000 | 40,000,000 | |||||||||
Wells Fargo Securities, LLC |
20,000,000 | 40,000,000 | 40,000,000 | |||||||||
BNY Mellon Capital Markets, LLC |
2,500,000 | 5,000,000 | 5,000,000 | |||||||||
Total |
$ | 250,000,000 | $ | 500,000,000 | $ | 500,000,000 |
Sch-A
SCHEDULE B
Broker-Dealer Subsidiaries
TD AMERITRADE, Inc.
TD AMERITRADE Clearing, Inc.
thinkorswim, Inc.
TD AMERITRADE Clearing, Inc.
thinkorswim, Inc.
Sch-B
SCHEDULE C
Investment Adviser Subsidiaries
Amerivest Investment Management, LLC
thinkorswim Advisors, Inc.
thinkorswim Advisors, Inc.
Sch-C
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet dated November 20, 2009
ANNEX II
Company Additional Written Communications
Electronic (Netroadshow) road show of the Company relating to the offering of the Notes dated
November 19, 2009.
ANNEX III
Company Additional Communications
Presentation of the Company dated November 16, 2009.
Annex-1
EXHIBIT A
TD AMERITRADE Holding Corporation
$1,250,000,000
$250,000,000 2.950% NOTES DUE 2012
$500,000,000 4.150% NOTES DUE 2014
$500,000,000 5.600% NOTES DUE 2019
TD AMERITRADE Holding Corporation
$1,250,000,000
$250,000,000 2.950% NOTES DUE 2012
$500,000,000 4.150% NOTES DUE 2014
$500,000,000 5.600% NOTES DUE 2019
Final Terms and Conditions
Notes due 2012 | Notes due 2014 | Notes due 2019 | ||||||||
Issuer: | TD AMERITRADE Holding Corporation |
|||||||||
Guarantor: | TD AMERITRADE Online Holdings Corp. |
|||||||||
Expected Ratings (*): | Baa1 / BBB+ / BBB+ (Stable / Stable / Positive) |
|||||||||
Format: | SEC-Registered |
|||||||||
Trade Date: | November 20, 2009 |
|||||||||
Settlement Date: | November 25, 2009 (T+3 days) |
Security Description: |
2.950% Senior Notes due 2012 (the Notes due 2012) | 4.150% Senior Notes due 2014 (the Notes due 2014) | 5.600% Senior Notes due 2019 (the Notes due 2019) | |||
Size: |
$250,000,000 | $500,000,000 | $500,000,000 | |||
Maturity: |
December 1, 2012 | December 1, 2014 | December 1, 2019 | |||
Benchmark Treasury: |
1.375% due 11/15/12 | 2.375% due 10/31/14 | 3.375% due 11/15/19 | |||
Benchmark Treasury Price and
Yield: |
100-13; 1.236% | 100-301/4; 2.172% | 100-02; 3.368% | |||
Re-offer Spread to Benchmark: |
T+175 bps | T+200 bps | T+225 bps | |||
Re-offer Yield: |
2.986% | 4.172% | 5.618% | |||
Coupon (Interest Rate): |
2.950% | 4.150% | 5.600% | |||
Public Offering Price: |
99.897% | 99.901% | 99.862% | |||
Proceeds (before expenses and
initial purchasers discount): |
$249,742,500 | $499,505,000 | $499,310,000 | |||
Interest Payment Dates: |
The 1st of each June and December, commencing on June 1st, 2010 | The 1st of each June and December, commencing on June 1st, 2010 | The 1st of each June and December, commencing on June 1st, 2010 | |||
Make-Whole Call: |
Treasury rate plus 25 bps | Treasury rate plus 30 bps | Treasury rate plus 35 bps | |||
Day Count: |
30 / 360 | 30 / 360 | 30 / 360 | |||
Redemption: |
The notes may be | The notes may be | The notes may be | |||
redeemed, in whole or in | redeemed, in whole or in | redeemed, in whole or in | ||||
part, at any time and | part, at any time and | part, at any time and | ||||
from time to time at a | from time to time at a | from time to time at a | ||||
make-whole redemption | make-whole redemption | make-whole redemption | ||||
price | price | price | ||||
Listing: |
The notes will not be | The notes will not be | The notes will not be | |||
listed on any securities | listed on any securities | listed on any securities | ||||
exchange or quoted on | exchange or quoted on | exchange or quoted on | ||||
any automated quotation | any automated quotation | any automated quotation | ||||
system | system | system | ||||
Minimum Denominations/Multiples: |
Denominations of $2,000 and in integral multiples of $1,000 | Denominations of $2,000 and in integral multiples of $1,000 | Denominations of $2,000 and in integral multiples of $1,000 |
Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships
Exhibit-A-1
in excess thereof | in excess thereof | in excess thereof | ||||
CUSIP: |
87236YAC2 | 87236YAB4 | 87236YAA6 | |||
ISIN: |
US87236YAC21 | US87236YAB48 | US87236YAA64 | |||
Joint Book-Running Managers and Joint Lead Managers: |
Banc of America Securities LLC Citigroup Global Markets Inc. |
|||||
Joint Lead Manager: |
TD Securities (USA) LLC | |||||
Senior Co-Managers: |
Barclays Capital Inc. | |||||
J.P. Morgan Securities Inc. | ||||||
Wells Fargo Securities, LLC | ||||||
Junior Co-Manager: |
BNY Mellon Capital Markets, LLC |
(*) | An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and assumptions, as they deem appropriate. The rating of the notes should be evaluated independently from similar ratings of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency. |
Ratio of Earnings to Fixed
Charges:
Fiscal Year Ended | ||||
September 30, 2009 | ||||
Pro Forma (3) | ||||
Ratio of earnings to fixed charges (1) |
11.8x | |||
Ratio of earnings to fixed charges,
excluding brokerage interest expense
(2) |
13.8x |
(1) | For purposes of calculating our ratio of earnings to fixed charges, earnings consist of earnings from continuing operations before income taxes plus fixed charges. Fixed charges consist of (i) interest on indebtedness, including amortization of capitalized debt issuance costs, (ii) brokerage interest expense, and (iii) the portion of rents representative of interest expense (which the Company estimates to be one-third of rental expense). | |
(2) | Because interest expense incurred in connection with brokerage activities is completely offset by brokerage interest revenue, the Company considers such interest to be a reduction of net revenues. Accordingly, the ratio of earnings to fixed charges, excluding brokerage interest expense, reflects the elimination of such interest expense from fixed charges. | |
(3) | The ratio of earnings to fixed charges for the fiscal year ended September 30, 2009 has been adjusted on a pro forma basis to give effect to the offer and sale of the $1,250 million aggregate principal amount of the notes offered hereby and the use of the net proceeds to repay our existing senior secured term loan facilities as if such events occurred on October 1, 2008. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering.
Exhibit-A-2
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Banc of America Securities LLC at
1-800-294-1322 or Citigroup Global Markets Inc. at 1-877-858-5407.
Exhibit-A-3
EXHIBIT B
Form of Opinion of Sidley Austin LLP
Form of Opinion of Sidley Austin LLP
Exhibit-B-1
EXHIBIT C
Form of Opinion of Kutak Rock LLP
Form of Opinion of Kutak Rock LLP
Exhibit-C-1
EXHIBIT D
Form of Opinion of General Counsel
Form of Opinion of General Counsel
Exhibit-D-1