EXHIBIT 1.1
August 1, 2001
ASSOCIATED BANC-CORP
Debt Securities
UNDERWRITING AGREEMENT
1. Introductory. Associated Banc-Corp, a Wisconsin corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities registered under the registration statement referred
to in Section 2(a) ("Registered Securities"). The Registered Securities
constituting debt securities will be issued under an indenture, dated as of
August 6, 2001 ("Indenture"), between the Company and The Bank of New York,
as Trustee, in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with all
such terms for any particular series of the Registered Securities being
determined at the time of sale. Particular series of Registered Securities
will be sold pursuant to a Terms Agreement referred to in Section 3, for
resale in accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Offered Securities". The firm or firms which
agree to purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives
of the Underwriters, if any, specified in a Terms Agreement referred to in
Section 3 are hereinafter referred to as the "Representatives"; provided,
however, that if the Terms Agreement does not specify any representative of
the Underwriters, the term "Representatives", as used in this Agreement (other
than in Sections 2(b), 5(c) and 6 and the second sentence of Section 3), shall
mean the Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-59482), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3
to reflect the terms of the Offered Securities and the terms of
offering thereof, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Securities
Act of 1933 ("Act"), including all material incorporated by reference
therein, is hereinafter referred to as the "Prospectus". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all material respects to the requirements of the Act,
the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules
and regulations of the Commission ("Rules and Regulations") and did
not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and
the Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus, in light of the circumstances
under which they were made, not misleading, except that the foregoing
does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by
any Underwriter through the Representatives, if any, specifically for
use therein.
(c) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Wisconsin, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to so qualify
would not have a Material Adverse Effect (as defined herein).
(d) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each subsidiary of the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have
a Material Adverse Effect (as defined herein); all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and
nonassessable, except as provided by Wisconsin Statutes Section
180.0622, as interpreted; and the capital stock of each subsidiary
owned by the Company, directly or through subsidiaries, is owned free
from liens, encumbrances and defects.
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act; the Offered Securities have
been duly authorized; and when the Offered Securities are delivered
and paid for pursuant to the Terms Agreement on the Closing Date (as
defined below) the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and
such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
(f) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in connection
with the issuance and sale of the Offered Securities by the Company,
except such as have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state
securities laws and except for such state banking notices which are
required to be given after the fact.
(g) The execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of this
Agreement) and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of
the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any
of the properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such subsidiary, and
the Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement).
(h) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company.
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(i) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the
Prospectus, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(j) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have
a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("Material Adverse Effect").
(k) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
imminent that might have a Material Adverse Effect.
(l) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(m) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability
of the Company to perform its obligations under the Indenture, the
Terms Agreement (including the provisions of this Agreement), or
which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are, to
the Company's knowledge, threatened.
(n) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis throughout the periods involved; any schedules
included in the Registration Statement present fairly the information
required to be stated therein; and if pro forma financial statements
are included in the Registration Statement and Prospectus: the
assumptions used in preparing the pro forma financial statements
included in the Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(o) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as
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a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(p) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
(q) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC
Act").
(r) The deposit accounts of each of the Company's bank
subsidiaries are insured by the Federal Deposit Insurance Corporation
(the "FDIC") to the fullest extent permitted by law and the rules and
regulations of the FDIC; and no proceedings for the termination of
such insurance are pending or, to the best of the Company's
knowledge, threatened.
(s) Neither the Company nor any of its subsidiaries is party
to or otherwise the subject of any consent decree, memorandum of
understanding, written commitment or other written supervisory
agreement with the Board of Governors of the Federal Reserve System
or any other federal or state authority or agency charged with the
supervision or insurance of depository institutions or their holding
companies.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at
the time the Company determines to sell the Offered Securities. The Terms
Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms which
will be Underwriters, the names of any Representatives, the principal amount
to be purchased by each Underwriter, the purchase price to be paid by the
Underwriters and the terms of the Offered Securities not already specified in
the Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements. The Terms Agreement
will also specify the time and date of delivery and payment (such time and
date, or such other time not later than seven full business days thereafter as
the Underwriter first named in the Terms Agreement (the "Lead Underwriter")
and the Company agree as the time for payment and delivery, being herein and
in the Terms Agreement referred to as the "Closing Date"), the place of
delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Securities. For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the Closing Date (if later than the otherwise applicable settlement
date) shall be the date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The obligations of
the Underwriters to purchase the Offered Securities will be several and not
joint. It is understood that the Underwriters propose to offer the Offered
Securities for sale as set forth in the Prospectus.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name
of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated
by the Company at a bank acceptable to the Lead Underwriter, in each case
drawn to the order of Associated Banc-Corp at the place of payment specified
in the Terms Agreement on the Closing Date, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Offered
Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the registration statement relating to the
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Registered Securities, including all exhibits, in the form it became effective
and of all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5)) not
later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company promptly will notify the Lead
Underwriter of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5
hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the later of
(i) the effective date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the
date of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to the date of such Terms Agreement, which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies
of the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities
as the Lead Underwriter reasonably requests. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as
the Lead Underwriter designates and will continue such qualifications
in effect so long as required for the distribution.
(g) During the period of three years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report
and any definitive proxy statement of the Company filed with the
Commission under
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the Securities Exchange Act of 1934 or mailed to stockholders, and
(ii) from time to time, such other information concerning the Company
as the Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under the Terms Agreement (including
the provisions of this Agreement), for any filing fees or other
expenses (including fees and disbursements of counsel) in connection
with qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws of
such jurisdictions as the Lead Underwriter may reasonably designate
and the printing of memoranda relating thereto for any fees charged
by investment rating agencies for the rating of the Offered
Securities, for any applicable filing fee incident to, the review by
the National Association of Securities Dealers, Inc. of the
Registered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or
supplements to the Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to
United States dollar-denominated debt securities issued or guaranteed
by the Company and having a maturity of more than one year from the
date of issue, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of the Lead Underwriter for a period beginning at the time of
execution of the Terms Agreement and ending the number of days after
the Closing Date specified under "Blackout" in the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of KPMG LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements and
any schedules and any summary of earnings examined by them
and included in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants
for a review of interim financial information as described
in Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included
in the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials
of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations or any material modifications
should be made
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to such unaudited financial statements and summary
of earnings for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, the unaudited
consolidated net sales, net operating income, net
income and net income per share amounts or other
amounts constituting such "capsule" information and
described in such letter do not agree with the
corresponding amounts set forth in the unaudited
consolidated financial statements or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the common stock, increases
in long-term debt, material decreases in
consolidated total assets or decreases in
stockholders' equity of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any change in the common
stock, increases in long-term debt or decreases in
consolidated total assets or stockholders' equity,
as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(D) for the period from the closing date
of the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any material decreases, as compared with
the corresponding period of the previous year and
with the period of corresponding length ended the
date of the latest income statement included in the
Prospectus, in consolidated net interest income,
income before income tax expense or net income;
except in all cases set forth in clauses (C) and (D) above
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such
dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be
contemplated by the Commission.
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(c) Subsequent to the execution of the Terms Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as one enterprise which, in the judgment
of a majority in interest of the Underwriters including any
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than
an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii)
any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives shall have received an opinion,
dated the Closing Date, of Xxxxxxx X. Xxxx, Esq., Corporate Counsel
for the Company, to the effect that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of
the State of Wisconsin, with corporate power and corporate
authority to own its properties and conduct its business as
described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires
such qualification;
(ii) The Indenture has been duly authorized,
executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act; the Offered
Securities have been duly authorized; the Offered Securities
have been duly executed, authenticated, issued and
delivered; the Indenture and the Offered Securities
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Offered
Securities conform to the description thereof contained in
the Prospectus;
(iii) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940;
(iv) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company,
except such as have been obtained and made under the Act and
the Trust Indenture Act and such as may be required under
state securities laws;
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(v) The execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of
this Agreement), the issuance and sale of the Offered
Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any
of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement);
(vi) The Registration Statement has become
effective under the Act, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein,
and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the registration
statement relating to the Registered Securities, as of its
effective date, the Registration Statement and the
Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of
the Act, the Trust Indenture Act and the Rules and
Regulations; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data contained in the Registration Statement or
the Prospectus;
(vii) The descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate
and fairly present the information required to be shown; and
such counsel do not know of any legal or governmental
proceedings required to be described in the Prospectus which
are not described as required or of any contracts or
documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not
described and filed as required; it being understood that
such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus;
(viii) The Terms Agreement (including the
provisions of this Agreement) has been duly authorized,
executed and delivered by the Company;
(ix) The Company is duly registered as a bank
holding company under the BHC Act; and the deposit accounts
of the Company's domestic bank subsidiaries are insured by
the FDIC to the fullest extent permitted by law and the
rules and regulations of the FDIC, and no proceedings for
the termination of such insurance are pending or, to the
best knowledge of such counsel, threatened; and
(x) Nothing has come to such counsel's attention
that have caused it to believe that such Registration
Statement, as of its effective date, or as of the Closing
Date, or any amendment thereto, as of its date or as of the
Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of the date of the
Terms Agreement or as of the Closing Date, or any amendment
or supplement thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were
9
made, not misleading; it being understood that such counsel
need express no opinion as to the financial statements or
other financial data contained in the Registration Statement
or the Prospectus.
In rendering such opinion, such counsel may rely as to matters
governed by New York law, upon the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
referred to below.
(e) The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities, the
Registration Statement, the Prospectus and other related matters as
the Representatives may require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Xxxxxxx Xxxxxxx & Xxxxxxxx may rely as to the incorporation of the
Company and all other matters governed by Wisconsin law upon the
opinion of Xxxxxxx X. Xxxx, Esq. referred to above.
(f) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectus or as described in such certificate.
(g) With respect to the letter of KPMG LLP delivered to the
Representatives concurrently with the execution of the Terms
Agreement which meets the requirements of subsection (a) of this
Section (the "initial letter"), the Company shall have furnished to
the Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated the Closing Date
(i) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than three days prior to the
date of the bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters
covered by the initial letter and (ii) confirming in all material
respects the conclusions and findings set forth in the initial
letter.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as the Representatives
reasonably request. The Lead Underwriter may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a
10
material fact required to be stated therein or necessary to make the
statements therein, in the case of the Prospectus, in light of the
circumstances under which they were made, not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement; and provided,
further, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any preliminary prospectus the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Offered Securities concerned, to
the extent that a prospectus relating to such Offered Securities was required
to be delivered by such Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to
such person, a copy of the Prospectus (exclusive of material incorporated by
reference) if the Company had previously furnished copies to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, promptly notify the indemnifying party 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 otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party unless such
11
settlement (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action
and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities under the Terms
Agreement and the aggregate principal amount of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Offered Securities, the Lead
Underwriter may make arrangements satisfactory to the Company for the purchase
of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments under the Terms Agreement (including the
provisions of this Agreement), to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to the Lead Underwriter and the Company for the purchase of such Offered
Securities by other persons are not made
12
within 36 hours after such default, the Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of the Terms Agreement pursuant to Section 7
or the occurrence of any event specified in clause (iii), (iv) or (v) of
Section 5(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Associated Banc-Corp,
0000 Xxxxxx Xxxx, Xxxxx Xxx, XX 00000, Attention: Treasurer.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms Agreement and their
respective successors and the officers and directors and controlling persons
referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the
Terms Agreement, and any action under such Terms Agreement (including the
provisions of this Agreement) taken by the Representatives jointly or by the
Lead Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
13
[The following form of Terms Agreement will not be an annex to the related
Underwriting Agreement and should normally be typed separately. In order to
inform the issuer of all the standard underwriting terms, a draft of the Terms
Agreement should be circulated together with the first draft of the
Underwriting Agreement.]
ASSOCIATED BANC-CORP
("Company")
Debt Securities
TERMS AGREEMENT
, 20
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to
the terms and conditions of the Underwriting Agreement filed as an exhibit to
the Company's registration statement on Form S-3 (No. 333- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
Title: [ %] [Floating Rate]--Notes--Debentures--Bonds--
Due .
Principal Amount: $ .
Interest: [ % per annum, from , 20 ,
payable semiannually on and ,
commencing , 20 , to holders of record
on the preceding or ,
as the case may be.] [Zero coupon.]
Maturity: , 20 .
Optional Redemption:
Sinking Fund:
Listing: [None.] [ Stock Exchange.] [The
Nasdaq Stock Market Inc.'s National Market.]
Purchase Price: % of principal amount, plus accrued
interest[, if any,] from , 20 .
Expected Reoffering Price: % of principal amount,
subject to change by the [Representative[s] [Underwriters].
Closing: A.M. on , 20 , at ,
in Federal (same day) funds.
Settlement and Trading: [Physical certificated form.]
[Book-Entry Only via DTC.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of the [Representative[s]]
[Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours
prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance
figures appearing in the paragraph under the caption "Underwriting"
in the prospectus supplement [If paragraph regarding passive market making is
included, insert--and the information contained in the paragraph under
the caption "Underwriting" in the prospectus supplement] [If applicable,
insert--; and (ii) the following information in the prospectus supplement
furnished on behalf of [insert name of Underwriter]: [insert description of
information, such as material relationship disclosure under the caption
"Underwriting" in the prospectus supplement].(1)
If the Offered Securities are denominated in a currency other than
United States dollars, make appropriate modifications to provisions of the
Terms Agreement (e.g., type of funds specified under "Closing") and consider
including in the Terms Agreement such changes and additions to the
Underwriting Agreement as may be appropriate in the circumstances, e.g.,
expanding the blackout provision in Section 4 to cover debt securities
denominated in the currency in which the Offered Securities are denominated,
expanding Section 5(c)(iv) to cover a banking moratorium declared by
authorities in the country of such currency, expanding Section 5(c)(v) to
cover a change or prospective change in, or governmental action affecting,
exchange controls applicable to such currency, and modifying Section 5(d) to
permit a statement to the effect that enforcement of the Indenture and the
Offered Securities is subject to provisions of law which may require that a
judgment for money damages rendered by a court in the United States be
expressed only in United States dollars and appropriate exceptions as to any
provisions requiring payment of additional amounts. Also consider requiring an
opinion of counsel for the Company confirming information as to United States
tax matters in the Prospectus and an opinion of foreign counsel for the
Company regarding such matters as foreign consents, approvals, authorizations,
licenses, waivers, withholding taxes, transfer or stamp taxes and any
information as to foreign laws in the Prospectus.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and
the several Underwriters in accordance with its terms.
Yours very truly,
---------
(1) Special care should be taken to ensure that the description of
the information, including caption references and any references to
particular paragraphs or sentences, matches the final Prospectus.
2
ASSOCIATED BANC-CORP
By_____________________________
[Insert title]
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
[If no co-representative, use first confirmation form. If
co-representative, use second.]
CREDIT SUISSE FIRST BOSTON CORPORATION
By _________________________________
[Insert title]
[Acting on behalf of itself and as the
Representative of the several Underwriters.]
CREDIT SUISSE FIRST BOSTON CORPORATION
---------------------------------------
---------------------------------------,
[Acting on behalf of themselves and as the
Representatives of the several Underwriters.]
By CREDIT SUISSE FIRST BOSTON CORPORATION
By ____________________________________
[Insert title]
3
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
Credit Suisse First Boston Corporation.................... $
-------
Total................................... $
=======
