e424b5
Filed
pursuant to Rule 424(b)(5)
Registration No. 333-156251
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Amount to
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Proposed maximum
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Proposed maximum
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Amount of
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Title of each class of securities to
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be
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offering price
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aggregate
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registration
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be registered
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registered
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per security
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offering price
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fee(1)
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5.125% Senior Notes due 2016
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$
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130,000,000
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104.499
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%
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$
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135,848,700
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$
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15,772
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(1) |
Calculated in accordance with Rule 457(r) under the
Securities Act of 1933, as amended.
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PROSPECTUS
SUPPLEMENT (TO PROSPECTUS DATED DECEMBER 17, 2008)
$130,000,000
5.125% Senior Notes due
2016
We will pay interest on the notes at the rate of 5.125% per
annum. We will pay interest on the notes semi-annually in
arrears on March 28 and September 28 of each year, beginning on
September 28, 2011. The notes will mature on March 28,
2016. The notes offered hereby are a further issuance of the
$300,000,000 aggregate principal amount of 5.125% Senior
Notes due 2016 issued on March 28, 2011, and will form a
single series with and be substantially identical in all
respects to the outstanding notes (other than the public
offering price and issue date), will have the same CUSIP number
and will trade interchangeably with the outstanding notes.
We may redeem the notes, in whole or in part, on or after
February 28, 2016 (one month prior to maturity), at 100% of
the principal amount of the notes, plus accrued interest. There
is no sinking fund for the notes.
The notes will be unsecured senior obligations of Associated
Banc-Corp and will rank equally in right of payment with all of
our other unsubordinated indebtedness from time to time
outstanding. The notes will not be guaranteed by any of our
subsidiaries.
The notes will be issued only in minimum denominations of $2,000
and integral multiples of $1,000 in excess thereof.
The notes will not be listed on any securities exchange.
Currently there is no public market for the notes.
The notes are not deposits or other obligations of a bank or
savings association and are not insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency.
Investing in the notes involves risks. See Risk
factors beginning on
page S-8
to read about factors you should consider before buying the
notes.
None of the Securities and Exchange Commission, any state
securities commission, the Board of Governors of the Federal
Reserve System, the Federal Deposit Insurance Corporation, or
any other regulatory body has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
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Per Note
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Total
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Public offering price(1)
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104.499
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%
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$
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135,848,700
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Underwriting discounts and commissions
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0.450
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%
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$
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585,000
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Proceeds to Associated Banc-Corp (before expenses and other
fees)(1)
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104.049
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%
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$
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135,263,700
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(1) |
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Plus accrued and unpaid interest from and including March 28,
2011 (as if the notes offered hereby had been issued on such
date). Accrued interest must be paid by the purchasers.
Associated Banc-Corp will also pay to the underwriter a fee of
0.414% per note, and $538,200 in the aggregate. |
The underwriter expects to deliver the notes in book-entry form
only through the facilities of The Depository Trust Company
against payment in New York, New York on or about
September 13, 2011. Beneficial interests in the notes will
be shown on, and transfers thereof will be effected only
through, records maintained by The Depository Trust Company
and its direct and indirect participants, including Clearstream
Banking, société anonyme, Luxembourg and Euroclear
Bank S.A./N.V.
Sole Book-Running Manager
Goldman, Sachs &
Co.
The date of this prospectus supplement is September 8, 2011.
We have not, and the underwriter has not, authorized any
other person to provide you with different or additional
information. If anyone provides you with different or
inconsistent information, we take no responsibility for, nor can
we provide any assurance as to the reliability of, any other
information that others may give you. We are not, and the
underwriter is not, making an offer to sell the notes in any
jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus
supplement, the accompanying prospectus, the documents
incorporated by reference herein and therein or any related free
writing prospectus is accurate only as of their respective
dates. Our business, financial condition, results of operations
and prospects may have changed since those dates.
Unless otherwise mentioned or unless the context requires
otherwise, all references in this prospectus supplement to
Associated or to we, us,
our, or similar references mean Associated Banc-Corp
and do not include any of our subsidiaries.
Table of
Contents
Prospectus supplement
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Page
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S-ii
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S-ii
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S-iii
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S-1
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S-8
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S-10
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S-11
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S-12
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S-21
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S-25
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S-27
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S-32
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S-32
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Prospectus
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Page
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About This Prospectus
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1
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Where You Can Find More Information
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1
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Risk Factors
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3
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Forward-looking Statements
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3
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Associated Banc-Corp
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3
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Certain Regulatory Considerations
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5
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About the Trusts
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6
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Use of Proceeds
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7
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Ratio of Earnings to Fixed Charges
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7
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Description of Senior and Subordinated Debt Securities
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7
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Description of Junior Subordinated Debt Securities
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15
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Description of Capital Securities
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26
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Description of the Guarantees
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34
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Relationship among the Capital Securities, the Corresponding
Junior Subordinated Debt Securities and the Guarantees
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36
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Description of Common Stock
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37
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Description of Preferred Stock
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38
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Description of Depositary Shares
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45
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Description of Warrants
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47
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Description of Units
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51
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Certain ERISA Considerations
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52
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Global Securities
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53
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Selling Security Holders
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56
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Plan of Distribution
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57
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Legal Matters
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61
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Experts
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61
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About
this prospectus supplement
This document is comprised of two parts. The first part is this
prospectus supplement, which describes the specific terms of
this offering and certain other matters relating to us, and it
adds to and updates information contained in the accompanying
prospectus and the documents incorporated by reference in this
prospectus supplement and the accompanying prospectus. The
second part is the accompanying prospectus, dated
December 17, 2008, which provides more general information
about the securities we may offer from time to time, some of
which does not apply to this offering. You should read both this
prospectus supplement and the accompanying prospectus, together
with additional information described under the heading
Where you can find more information.
If the information set forth in this prospectus supplement
differs in any way from the information set forth in the
accompanying prospectus, you should rely on the information set
forth in this prospectus supplement. If the information
conflicts with any statement in a document that we have
incorporated by reference, then you should consider only the
statement in the more recent document.
It is important for you to read and consider all information
contained or incorporated by reference in this prospectus
supplement, the accompanying prospectus or any free writing
prospectus filed by us with the SEC related to this offering
before investing in the notes, including the information
contained in the documents identified under the heading
Where you can find more information below.
Where you
can find more information
We file annual, quarterly, and current reports, proxy
statements, and other information with the Securities and
Exchange Commission, which we refer to in this document as the
SEC. Our SEC filings are available to the public
over the Internet on the SECs web site at
http://www.sec.gov
and on the investor relations page of our website at
http://www.associatedbank.com.
Except for those SEC filings incorporated by reference in this
prospectus supplement, none of the other information on our
website is part of this prospectus supplement. You may also read
and copy any document we file with the SEC at its public
reference facilities at 100 F Street N.E.,
Washington, D.C. 20549. You can also obtain copies of the
documents upon the payment of a duplicating fee to the SEC.
Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
facilities.
The SECs rules allow us to incorporate by
reference information into this prospectus supplement.
This means that we can disclose important information to you by
referring you to another document filed separately with the SEC.
The information incorporated by reference is considered to be a
part of this prospectus supplement. Any information incorporated
by reference in this prospectus supplement that we file with the
SEC after the date of this prospectus supplement will
automatically update and supersede information contained in this
prospectus supplement.
We are incorporating by reference in this prospectus
supplement the documents listed below and any future filings
that we make with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the
Exchange Act), prior to the termination of this
offering, except that we are not incorporating by reference any
information furnished (but not filed) under Item 2.02 or
Item 7.01 of any Current Report on
Form 8-K:
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our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2010 (including the
portions of our Proxy Statement on Schedule 14A, filed on
March 9, 2011, incorporated by reference therein);
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our Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2011 and June 30,
2011; and
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our Current Reports on
Form 8-K
filed on January 25, 2011, February 22, 2011,
March 25, 2011, March 28, 2011, April 6, 2011,
April 26, 2011, June 15, 2011, July 18, 2011,
July 26, 2011 and September 6, 2011.
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Upon written or oral request, we will provide at no
cost to the requester a copy of any or all of the
information that has been incorporated by reference in this
prospectus supplement but not delivered with this prospectus
supplement, excluding all exhibits unless we have specifically
incorporated by reference an exhibit in
S-ii
this prospectus supplement. You may make a request by writing to
us at the following address or calling the following telephone
number:
Associated Banc-Corp
Attention: Corporate Secretary
1200 Hansen Road
Green Bay, Wisconsin 54304
(920) 491-7000
Special
note regarding forward-looking statements
This prospectus supplement and the accompanying prospectus,
including the documents that are incorporated by reference,
contain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the
Securities Act), and Section 21E of the
Exchange Act. You can identify forward-looking statements by
words such as may, hope,
will, should, expect,
plan, anticipate, intend,
believe, estimate, predict,
potential, continue, could,
future or the negative of those terms or other words
of similar meaning. You should read statements that contain
these words carefully because they discuss our future
expectations or state other forward-looking
information. We believe that it is important to communicate our
future expectations to our investors. Such forward-looking
statements may relate to our financial condition, results of
operations, plans, objectives, future performance or business
and are based upon the beliefs and assumptions of our management
and the information available to our management at the time
these disclosures are prepared. These forward-looking statements
involve risks and uncertainties that we may not be able to
accurately predict or control and our actual results may differ
materially from the expectations we describe in our
forward-looking statements. Before you invest in the notes, you
should be aware that the occurrence of the events discussed
under the heading Risk factors in this prospectus
supplement and in the information incorporated by reference
herein (including the risk factors contained in our Annual
Report on
Form 10-K),
could have an adverse effect on our business, results of
operations and financial condition. These factors, many of which
are beyond our control, include the following:
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operating, legal and regulatory risks, including risks relating
to our allowance for loan losses and impairment of goodwill;
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economic, political and competitive forces affecting our
banking, securities, asset management, insurance and credit
services businesses;
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integration risks related to acquisitions;
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impact on net interest income of changes in monetary policy and
general economic conditions; and
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the risk that our analyses of these risks and forces could be
incorrect
and/or that
the strategies developed to address them could be unsuccessful.
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For a discussion of these and other risks that may cause actual
results to differ from expectations, refer to the Risk
factors section of this prospectus supplement and in our
Annual Report on
Form 10-K
incorporated by reference herein. The forward-looking statements
contained or incorporated by reference in this prospectus
supplement relate only to circumstances as of the date on which
the statements are made. We undertake no obligation to update or
revise any forward-looking statements, whether as a result of
new information, future events or otherwise.
S-iii
Summary
The following summary should be read together with the
information contained in other parts of this prospectus
supplement and the accompanying prospectus. This summary
highlights selected information from this prospectus supplement
and the accompanying prospectus to help you understand the
offering of the notes. You should read this prospectus
supplement and the accompanying prospectus, including the
documents we incorporate by reference, carefully to understand
fully the terms of the notes as well as the other considerations
that are important to you in making a decision about whether to
invest in the notes. You should pay special attention to the
Risk factors section of this prospectus supplement
and the Risk Factors section in our Annual Report on
Form 10-K
for the year ended December 31, 2010 and the other
documents incorporated by reference into this prospectus
supplement, before you determine whether an investment in the
notes is appropriate for you.
Associated
Banc-Corp
Associated Banc-Corp (together with all of its subsidiaries and
affiliates, collectively referred to in this section as
we, us, or our) is a bank
holding company registered pursuant to the Bank Holding Company
Act of 1956, as amended, and incorporated in Wisconsin. Through
our banking subsidiary Associated Bank, National Association
(Associated Bank), and various nonbanking
subsidiaries, we provide a broad array of banking and nonbanking
products and services to individuals and businesses through
approximately 270 banking offices serving more than 150
communities, primarily within our three-state footprint
(Wisconsin, Illinois, and Minnesota). At June 30, 2011, we
had $22.0 billion of consolidated assets,
$14.1 billion of deposits, and $3.0 billion of
stockholders equity. Measured by total assets held at
June 30, 2011, we are now the largest bank holding company
headquartered in Wisconsin and one of the top 50 financial
services holding companies operating in the United States.
Our business is primarily relationship-driven and is organized
into two reportable segments: Banking and Wealth Management.
Banking consists of lending and deposit gathering (as well as
other banking-related products and services) to businesses,
governments, and consumers, and the support to deliver, fund,
and manage such banking services. We offer a variety of loan and
deposit products to retail customers, including but not limited
to: home equity loans and lines of credit, residential mortgage
loans and mortgage refinancing, education loans, personal and
installment loans, checking, savings, money market deposit
accounts, IRA accounts, certificates of deposit, and safe
deposit boxes. Loans, deposits, and related banking services to
businesses (including small and larger businesses,
governments/municipalities, metro or niche markets, and
companies with specialized lending needs such as floor plan
lending or asset-based lending) primarily include, but are not
limited to: business checking and other business deposit
products, business loans, lines of credit, commercial real
estate financing, construction loans, letters of credit,
revolving credit arrangements, and to a lesser degree, business
credit cards and equipment and machinery leases. We also provide
safe deposit and night depository services, cash management,
international banking, as well as check clearing, safekeeping,
and other banking-based services. At June 30, 2011,
approximately 55% of our loan portfolio consisted of commercial
and industrial, real estate construction, commercial real estate
loans, and lease financing. The banking segment represented 89%
(before intercompany eliminations) of total revenues for the six
months ended June 30, 2011.
Wealth management provides fiduciary, investment management,
advisory and corporate agency services to assist customers in
building, investing, or protecting their wealth. Customers
include individuals, corporations, small businesses, charitable
trusts, endowments, foundations, and institutional investors.
The wealth management segment represented 12% (before
intercompany eliminations) of total revenues for the six months
ended June 30, 2011.
Our primary sources of revenue, through Associated Bank, are net
interest income (predominantly from loans and deposits, and also
from investment securities and other funding sources), and
noninterest income, particularly fees and other revenue from
financial services provided to customers or ancillary services
tied to loans and deposits.
During 2010, we took action to significantly improve our credit
and capital metrics and address the challenges experienced
during 2009. Management is committed to a proactive nonaccrual
and problem loan identification
S-1
philosophy. At June 30, 2011, nonperforming assets
represented 2.33% of total assets and the ratio of total
stockholders equity to assets was 13.60%. At June 30,
2011, we reported a consolidated tier 1 common equity to
risk-weighted assets ratio of 12.61%. We have consistently
maintained regulatory capital ratios at or above the well
capitalized standards. At June 30, 2011, our allowance for
loan losses was equal to 91.09% of our nonaccrual loan balances.
Our business strategy includes significant growth plans. We are
not dependent upon a single or a few customers and we intend to
continue pursuing a profitable growth strategy driven by new
initiatives. Thus far, 2011 has been a year of transition as we
execute on our strategic initiatives, including the hiring of
additional talent, enhancing management reporting systems,
investing in branch upgrades throughout our three-state
footprint and repurchasing securities issued to the United
States Treasury under the Capital Purchase Program. See
Use of Proceeds. We believe these ongoing
investments will strengthen core businesses and position us for
the future.
Our principal executive office is located at 1200 Hansen Road,
Green Bay, Wisconsin 54304, and our telephone number at that
address is
(920) 491-7000.
Additional information about us and our subsidiaries is included
in documents incorporated by reference.
S-2
The
offering
The following summary contains basic information about the
notes and is not intended to be complete. It does not contain
all the information that is important to you. For a more
complete understanding of the notes, you should read the section
of this prospectus supplement entitled Description of the
notes.
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Issuer |
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Associated Banc-Corp, a Wisconsin corporation. |
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Securities offered |
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$130,000,000 aggregate principal amount of 5.125% Senior
Notes due 2016, representing a reopening of the $300,000,000
aggregate principal amount of 5.125% Senior Notes due 2016
that were issued on March 28, 2011, which will form a
single series with the outstanding notes under the indenture (as
described below) (collectively, the notes). Upon the
completion of this offering, the total aggregate principal
amount of 5.125% Senior Notes due 2016 outstanding will be
$430,000,000. |
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Issue date |
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September 13, 2011. |
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Maturity |
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March 28, 2016. |
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Interest |
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We will pay interest at the rate of 5.125% per annum payable
semi-annually in arrears on March 28 and September 28 of each
year, beginning on September 28, 2011, accruing from and
including March 28, 2011 (as if the notes had been issued
on such date). |
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Ranking |
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The notes will be Associated Banc-Corps unsecured senior
obligations and will rank equally in right of payment with all
of our other unsubordinated indebtedness from time to time
outstanding, and will be effectively subordinated to any of our
secured indebtedness to the extent of the value of the
collateral securing such indebtedness, and structurally
subordinated to the existing and future indebtedness of our
subsidiaries. |
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As of June 30, 2011: |
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Associated Banc-Corp had $300 million
(principal amount) of 5.125% Senior Notes due 2016
outstanding;
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Associated Banc-Corp had no outstanding secured
indebtedness;
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Associated Banc-Corp (not including our
subsidiaries) had an aggregate of approximately
$383.3 million of outstanding unsecured subordinated debt
and junior unsecured subordinated debt; and
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our subsidiaries had, in the aggregate, outstanding
debt and other liabilities, including deposits, of approximately
$18.4 billion, all of which would rank structurally senior
to the notes in case of liquidation or otherwise (excluding
intercompany liabilities).
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The indenture does not limit the amount of additional
indebtedness we or our subsidiaries may incur. |
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Optional redemption |
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We may redeem the notes, in whole or in part, on or after
February 28, 2016 (one month prior to maturity) at 100% of
the principal amount of the notes being redeemed, plus accrued
interest. See Description of the notes
Optional redemption by us. |
S-3
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Restrictive covenants |
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We will issue the notes under an indenture between us and The
Bank of New York Mellon Trust Company, N.A., as trustee, as
the same may be amended or supplemented from time to time. The
indenture, among other things, restricts our ability to dispose
of, grant a security interest in or issue shares of voting stock
of Associated Bank and to transfer our assets substantially as
an entirety or merge into or consolidate with any person,
without satisfying the conditions described in the section
entitled Description of the notes Limitation
on disposition of stock of principal subsidiary bank and
Consolidation, merger and sale of assets. |
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No guarantees |
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The notes are not guaranteed by any of our subsidiaries. As a
result, the notes will be structurally subordinated to the
liabilities of our subsidiaries as discussed above under
Ranking. |
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Use of proceeds |
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We estimate that the net proceeds from this offering will be
approximately $134.4 million, after deducting estimated
expenses and underwriting discounts and commissions. We have
notified our banking regulators and the U.S. Department of the
Treasury (the U.S. Treasury) that we intend to use
the net proceeds of this offering and our recently announced
offering of depositary shares for a newly-issued series of our
preferred stock, together with other available funds, to
repurchase on September 28, 2011 the remaining
$262.5 million of the Fixed Rate Cumulative Perpetual
Preferred Stock, Series A, par value $1.00 per share (the
Series A Preferred Stock), that we issued as
part of the U.S. Treasurys Capital Purchase Program,
contingent upon consummation of both offerings. If our
repurchase of the Series A Preferred Stock is consummated
on September 28, 2011 as anticipated, the redemption price
will be approximately $264.1 million ($262.5 million
liquidation amount outstanding plus approximately
$1.6 million of accrued and unpaid dividends ). While we
intend to use the net proceeds from this offering and our
depositary shares offering, and other available funds, to
repurchase the remaining Series A Preferred Stock, the
consummation of this offering is not conditioned upon the
consummation of our depositary shares offering nor the
Series A Preferred Stock repurchase. See Use of
proceeds. |
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Listing |
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The notes will not be listed on any securities exchange. |
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Additional notes |
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The notes will be limited to an aggregate principal amount of
$430,000,000, subject to our ability to reopen the
series of notes and issue additional notes of the same series. |
S-4
Summary
financial data
The following table sets forth our summary financial data for
the periods presented. We derived the summary statement of
income data for each of the years in the five-year period ended
December 31, 2010, and the summary balance sheet data as of
December 31 in each of the years in the five-year period ended
December 31, 2010, from our audited consolidated financial
statements incorporated by reference herein. We derived the
summary statement of income data for each of the six months
ended June 30, 2011 and 2010, and the summary balance sheet
data as of June 30, 2011 and 2010, from our unaudited
consolidated financial statements incorporated by reference
herein. The unaudited consolidated financial data include, in
the opinion of management, all adjustments, consisting only of
normal recurring adjustments, that management considers
necessary for the fair presentation of the financial information
set forth in those statements in accordance with accounting
principles generally accepted in the United States of America.
The historical results presented below are not necessarily
indicative of financial results to be achieved in future
periods, and the results for the six months ended June 30,
2011 are not necessarily indicative of results to be expected
for the full year 2011 or for any other period. You should read
this information together with Managements
Discussion and Analysis of Financial Condition and Results of
Operations and our audited and unaudited consolidated
financial statements and related notes, included in our Annual
Report on
Form 10-K
for the year ended December 31, 2010 and our Quarterly
Report on
Form 10-Q
for the quarter ended June 30, 2011, incorporated by
reference herein.
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For the Six Months
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Ended June 30,
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For the Years Ended December 31,
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2011
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2010
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2010
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2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
|
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Dollars in thousands)
|
|
|
Interest income
|
|
$
|
375,245
|
|
|
$
|
420,818
|
|
|
$
|
806,126
|
|
|
$
|
981,256
|
|
|
$
|
1,126,709
|
|
|
$
|
1,275,712
|
|
|
$
|
1,279,379
|
|
Interest expense
|
|
|
67,399
|
|
|
|
91,803
|
|
|
|
172,347
|
|
|
|
255,251
|
|
|
|
430,561
|
|
|
|
631,899
|
|
|
|
609,830
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net interest income
|
|
|
307,846
|
|
|
|
329,015
|
|
|
|
633,779
|
|
|
|
726,005
|
|
|
|
696,148
|
|
|
|
643,813
|
|
|
|
669,549
|
|
Provision for loan losses
|
|
|
47,000
|
|
|
|
263,010
|
|
|
|
390,010
|
|
|
|
750,645
|
|
|
|
202,058
|
|
|
|
34,509
|
|
|
|
19,056
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net interest income (loss) after provision for loan losses
|
|
|
260,846
|
|
|
|
66,005
|
|
|
|
243,769
|
|
|
|
(24,640
|
)
|
|
|
494,090
|
|
|
|
609,304
|
|
|
|
650,493
|
|
Noninterest income
|
|
|
136,937
|
|
|
|
178,929
|
|
|
|
345,523
|
|
|
|
350,961
|
|
|
|
285,650
|
|
|
|
344,781
|
|
|
|
295,501
|
|
Noninterest expense
|
|
|
323,062
|
|
|
|
306,897
|
|
|
|
630,320
|
|
|
|
611,420
|
|
|
|
557,460
|
|
|
|
534,891
|
|
|
|
496,215
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
74,721
|
|
|
|
(61,963
|
)
|
|
|
(41,028
|
)
|
|
|
(285,099
|
)
|
|
|
222,280
|
|
|
|
419,194
|
|
|
|
449,779
|
|
Income tax expense (benefit)
|
|
|
17,486
|
|
|
|
(32,795
|
)
|
|
|
(40,172
|
)
|
|
|
(153,240
|
)
|
|
|
53,828
|
|
|
|
133,442
|
|
|
|
133,134
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
57,235
|
|
|
|
(29,168
|
)
|
|
|
(856
|
)
|
|
|
(131,859
|
)
|
|
|
168,452
|
|
|
|
285,752
|
|
|
|
316,645
|
|
Preferred stock dividends and discount accretion
|
|
|
16,225
|
|
|
|
14,742
|
|
|
|
29,531
|
|
|
|
29,348
|
|
|
|
3,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss) available to common equity
|
|
$
|
41,010
|
|
|
$
|
(43,910
|
)
|
|
$
|
(30,387
|
)
|
|
$
|
(161,207
|
)
|
|
$
|
165,202
|
|
|
$
|
285,752
|
|
|
$
|
316,645
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Taxable equivalent adjustment
|
|
$
|
10,772
|
|
|
$
|
12,000
|
|
|
$
|
23,635
|
|
|
$
|
24,820
|
|
|
$
|
27,711
|
|
|
$
|
27,259
|
|
|
$
|
26,233
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Period-End Balances:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans
|
|
$
|
13,089,589
|
|
|
$
|
12,601,916
|
|
|
$
|
12,616,735
|
|
|
$
|
14,128,625
|
|
|
$
|
16,283,908
|
|
|
$
|
15,516,252
|
|
|
$
|
14,881,526
|
|
Allowance for loan losses
|
|
|
425,961
|
|
|
|
567,912
|
|
|
|
476,813
|
|
|
|
573,533
|
|
|
|
265,378
|
|
|
|
200,570
|
|
|
|
203,481
|
|
Investment securities, available for sale
|
|
|
5,742,034
|
|
|
|
5,322,177
|
|
|
|
6,101,341
|
|
|
|
5,835,533
|
|
|
|
5,143,414
|
|
|
|
3,358,617
|
|
|
|
3,251,025
|
|
Total assets
|
|
|
22,048,475
|
|
|
|
22,760,059
|
|
|
|
21,785,596
|
|
|
|
22,874,142
|
|
|
|
24,192,067
|
|
|
|
21,592,083
|
|
|
|
20,861,384
|
|
Deposits
|
|
|
14,066,050
|
|
|
|
16,970,199
|
|
|
|
15,225,393
|
|
|
|
16,728,613
|
|
|
|
15,154,796
|
|
|
|
13,973,913
|
|
|
|
14,316,071
|
|
Short and long-term funding
|
|
|
4,739,844
|
|
|
|
2,357,097
|
|
|
|
3,160,987
|
|
|
|
3,180,851
|
|
|
|
5,565,583
|
|
|
|
5,091,558
|
|
|
|
4,113,827
|
|
Stockholders equity
|
|
|
2,999,148
|
|
|
|
3,186,127
|
|
|
|
3,158,791
|
|
|
|
2,738,608
|
|
|
|
2,876,503
|
|
|
|
2,329,705
|
|
|
|
2,245,493
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S-5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months
|
|
|
|
|
|
|
Ended June 30,
|
|
|
For the Years Ended December 31,
|
|
|
|
2011
|
|
|
2010
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
|
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Dollars in thousands)
|
|
|
Average Balances:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans
|
|
$
|
12,840,289
|
|
|
$
|
13,659,385
|
|
|
$
|
13,186,712
|
|
|
$
|
15,595,636
|
|
|
$
|
16,080,565
|
|
|
$
|
15,132,634
|
|
|
$
|
15,370,090
|
|
Investment securities, available for sale
|
|
|
5,773,545
|
|
|
|
5,449,542
|
|
|
|
5,628,405
|
|
|
|
5,690,968
|
|
|
|
3,707,549
|
|
|
|
3,480,831
|
|
|
|
3,825,245
|
|
Total assets
|
|
|
21,432,029
|
|
|
|
22,873,703
|
|
|
|
22,625,065
|
|
|
|
23,609,471
|
|
|
|
22,037,963
|
|
|
|
20,638,005
|
|
|
|
21,162,099
|
|
Earning assets
|
|
|
19,364,948
|
|
|
|
20,835,705
|
|
|
|
20,568,495
|
|
|
|
21,337,382
|
|
|
|
19,839,706
|
|
|
|
18,644,770
|
|
|
|
19,229,849
|
|
Deposits
|
|
|
14,148,618
|
|
|
|
17,099,816
|
|
|
|
16,946,301
|
|
|
|
15,959,046
|
|
|
|
13,812,072
|
|
|
|
13,741,803
|
|
|
|
13,623,703
|
|
Interest-bearing liabilities
|
|
|
15,085,468
|
|
|
|
16,688,248
|
|
|
|
16,304,220
|
|
|
|
17,659,282
|
|
|
|
17,019,832
|
|
|
|
15,886,710
|
|
|
|
16,434,947
|
|
Stockholders equity
|
|
|
3,074,197
|
|
|
|
3,165,798
|
|
|
|
3,183,572
|
|
|
|
2,902,911
|
|
|
|
2,423,332
|
|
|
|
2,253,878
|
|
|
|
2,279,376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial Ratios:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Return on average equity
|
|
|
3.75
|
%
|
|
|
(1.86
|
)%
|
|
|
(0.03
|
)%
|
|
|
(4.54
|
)%
|
|
|
6.95
|
%
|
|
|
12.68
|
%
|
|
|
13.89
|
%
|
Return on average assets
|
|
|
0.54
|
%
|
|
|
(0.26
|
)%
|
|
|
(0.00
|
)%
|
|
|
(0.56
|
)%
|
|
|
0.76
|
%
|
|
|
1.38
|
%
|
|
|
1.50
|
%
|
Net interest margin
|
|
|
3.30
|
%
|
|
|
3.29
|
%
|
|
|
3.20
|
%
|
|
|
3.52
|
%
|
|
|
3.65
|
%
|
|
|
3.60
|
%
|
|
|
3.62
|
%
|
Stockholders equity to total assets
|
|
|
13.60
|
%
|
|
|
14.00
|
%
|
|
|
14.50
|
%
|
|
|
11.97
|
%
|
|
|
11.89
|
%
|
|
|
10.79
|
%
|
|
|
10.76
|
%
|
Tangible stockholders equity to tangible assets(1)
|
|
|
9.71
|
%
|
|
|
10.23
|
%
|
|
|
10.59
|
%
|
|
|
8.12
|
%
|
|
|
8.23
|
%
|
|
|
6.59
|
%
|
|
|
6.67
|
%
|
Tier 1 common equity to risk-weighted assets(2)
|
|
|
12.61
|
%
|
|
|
12.00
|
%
|
|
|
12.26
|
%
|
|
|
7.85
|
%
|
|
|
7.90
|
%
|
|
|
7.88
|
%
|
|
|
8.17
|
%
|
Average equity to average assets
|
|
|
14.34
|
%
|
|
|
13.84
|
%
|
|
|
14.07
|
%
|
|
|
12.30
|
%
|
|
|
11.00
|
%
|
|
|
10.92
|
%
|
|
|
10.77
|
%
|
|
|
|
(1) |
|
Tangible stockholders equity to tangible assets = Total
stockholders equity excluding goodwill and other
intangible assets divided by assets excluding goodwill and other
tangible assets. This is a non-GAAP financial measure. |
|
(2) |
|
Tier 1 common capital ratio = Tier 1 capital excluding
qualifying perpetual preferred stock and qualifying trust
preferred securities divided by risk-weighted assets. This is a
non-GAAP financial measure. |
S-6
Ratio of
earnings to fixed charges and preferred stock
dividends
Our consolidated ratios of earnings to fixed charges and
preferred stock dividends for each of the five years indicated
below and the six months ended June 30, 2011 and 2010 are
as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
|
|
|
|
|
|
|
June 30,
|
|
|
Years Ended December 31,
|
|
|
|
2011
|
|
|
2010
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Excluding interest on deposits
|
|
|
2.15
|
x
|
|
|
|
**
|
|
|
0.29
|
x
|
|
|
|
*
|
|
|
2.25
|
x
|
|
|
2.80
|
x
|
|
|
2.80
|
x
|
Including interest on deposits
|
|
|
1.68
|
x
|
|
|
0.29
|
x
|
|
|
0.66
|
x
|
|
|
|
*
|
|
|
1.50
|
x
|
|
|
1.66
|
x
|
|
|
1.73x
|
|
|
|
|
* |
|
Earnings for the reporting period were inadequate to cover total
fixed charges by $314 million. |
|
** |
|
Earnings for the reporting period were inadequate to cover total
fixed charges by $77 million. |
For the purpose of computing the above ratios, earnings consist
of income before income taxes and fixed charges, less preferred
stock dividends and accretion. Fixed charges and preferred stock
dividends, excluding interest on deposits, include interest
expense on debt (including the amortization of premiums and
discounts), the portion of rents representative of the interest
factor and preferred stock dividends and accretion. Fixed
charges and preferred stock dividends, including interest on
deposits, include interest expense on debt and deposits
(including the amortization of premiums and discounts), the
portion of rents representative of the interest factor, and
preferred stock dividends and accretion.
S-7
Risk
factors
Investing in the notes involves risks, including the risks
described below that are specific to the notes and those that
could affect us and our business. You should not purchase notes
unless you understand these investment risks. Please be aware
that other risks may prove to be important in the future. New
risks may emerge at any time, and we cannot predict such risks
or estimate the extent to which they may affect our financial
performance. Before purchasing any notes, you should carefully
consider the following discussion of risks and the other
information in this prospectus supplement and the accompanying
prospectus, and carefully read the risks described in the
documents incorporated by reference in this prospectus
supplement, including those set forth under the caption
Risk Factors in our Annual Report on
Form 10-K
for the year ended December 31, 2010.
Risks
relating to the notes
The
notes are our obligations and not obligations of our
subsidiaries and will be structurally subordinated to the claims
of our subsidiaries creditors.
The notes are exclusively our obligations and not those of our
subsidiaries. We are a holding company that conducts
substantially all of our operations through our bank and nonbank
subsidiaries. As a result, our ability to make payments on the
notes will depend primarily upon the receipt of dividends and
other distributions from our subsidiaries. If we do not receive
sufficient cash dividends and other distributions from our
subsidiaries, it is unlikely that we will have sufficient funds
to make payments on the notes.
In addition, our right to participate in any distribution of
assets of any of our subsidiaries upon the subsidiarys
liquidation or otherwise, and thus your ability as a holder of
the notes to benefit indirectly from such distribution, will be
subject to the prior claims of creditors of that subsidiary
(including, in the case of Associated Bank, its depositors),
except to the extent that we are a creditor of such subsidiary
with claims that are recognized. As a result, the notes
effectively will be subordinated to all existing and future
liabilities and obligations of our subsidiaries, including
deposit liabilities. At June 30, 2011, the aggregate amount
of all debt and other liabilities of our subsidiaries, including
deposits, that would rank structurally senior to the notes was
approximately $18.4 billion (excluding intercompany
liabilities). Our subsidiaries may incur additional debt and
liabilities in the future, all of which would rank structurally
senior to the notes.
If
Associated Bank is unable to make dividend payments to us and
sufficient capital is not otherwise available, we may not be
able to make principal and interest payments on our debt,
including the notes.
Our subsidiaries are separate and distinct legal entities. Our
subsidiaries have no obligation to pay any amounts due on the
notes or to provide us with funds to pay our obligations,
whether by dividends, distributions, loans or other payments. In
addition, any dividend payments, distributions, loans or
advances to us by our subsidiaries in the future will require
the generation of future earnings by our subsidiaries and may
require regulatory approval. Regulations of the Office of the
Comptroller of the Currency (OCC), its primary
banking regulator, affect the ability of Associated Bank to pay
dividends and other distributions to us and to make loans to us.
Recently, the OCC terminated the Memorandum of Understanding
(MOU) entered into in November 2009. The MOU, which
was an informal agreement between Associated Bank and the OCC,
required Associated Bank among other things to implement a
three-year capital plan providing for maintenance of capital at
specified levels higher than those otherwise required by
applicable regulations, notification to the OCC of dividends
proposed to be paid to us, and our commitment to act as a
primary or contingent source of Associated Banks capital.
The
notes will be effectively junior to all of our and our
subsidiaries secured indebtedness.
The notes will be effectively subordinated to any secured debt
we or our subsidiaries may incur, to the extent of the value of
the collateral securing such debt. In the event that we are
declared bankrupt, become insolvent or are liquidated or
reorganized, any debt that ranks ahead of the notes will be
entitled to be paid in full from our assets before any payment
may be made with respect to the notes. Holders of the notes will
participate ratably with all holders of our unsecured
indebtedness that is deemed to be of the same ranking as the
notes, and potentially with all of our other general creditors,
based upon the respective amounts owed to each holder or
creditor, in our remaining assets. In any of the foregoing
events, we may not have sufficient assets to pay amounts due on
the notes. As a result, if holders of the notes receive any
payments, they may receive less, ratably, than holders of
secured indebtedness.
S-8
There
are limited covenants in the indenture.
Neither we nor any of our subsidiaries is restricted from
incurring additional debt or other liabilities, including
additional senior or secured debt, under the indenture. If we
incur additional debt or liabilities, our ability to pay our
obligations on the notes could be adversely affected. We expect
to incur, from time to time, additional debt and other
liabilities. In addition, except for grants of security
interests in voting stock of any principal subsidiary bank to
the extent described under Description of the
notes Limitation on disposition of stock of
principal subsidiary bank, we are not restricted under the
indenture from granting security interests over our assets, or
from paying dividends or issuing or repurchasing our securities.
In addition, the indenture and the notes do not contain, among
other things, provisions which would afford holders of the notes
protection in the event of a highly leveraged or other
transaction involving our company which could adversely affect
the holders of the notes.
The
notes are not insured or guaranteed by the FDIC.
The notes are not deposits or other obligations of a bank or
savings association and are not insured or guaranteed by the
FDIC or any other governmental agency.
You
may be unable to sell the notes because any public trading
market for the notes may not have sufficient
liquidity.
We do not intend to apply for listing of the notes on any
securities exchange. Consequently, the notes will be relatively
illiquid and you may be unable to sell your notes. Although the
underwriter has advised us that, following completion of the
offering of the notes, the underwriter currently intends to make
a secondary market in the notes, it is not obligated to do so
and may discontinue any market-making activities at any time
without notice. Accordingly, a trading market for the notes may
not have sufficient liquidity.
The
price at which you will be able to sell your notes prior to
maturity will depend on a number of factors and may be
substantially less than the amount you originally
invest.
We believe that the value of the notes in any secondary market
will be affected by the supply and demand of the notes, the
interest rate and a number of other factors. Some of these
factors are interrelated in complex ways. As a result, the
effect of any one factor may be offset or magnified by the
effect of another factor. The following paragraphs describe what
we expect to be the impact on the market value of the notes of a
change in a specific factor, assuming all other conditions
remain constant.
United States interest rates. We expect that
the market value of the notes will be affected by changes in
United States interest rates. In general, if United States
interest rates increase, the market value of the notes may
decrease.
Our credit rating, financial condition and
results. Actual or anticipated changes in our
credit ratings or financial condition may affect the market
value of the notes. In general, if our credit ratings or
financial condition change adversely, the market value of the
notes may decrease.
We want you to understand that the impact of one of the factors
above, such as an increase in United States interest rates, may
offset some or all of any change in the market value of the
notes attributable to another factor, such as an improvement in
our credit rating.
Our
credit ratings may not reflect all risks of an investment in the
notes.
Any credit ratings assigned to the notes may not reflect the
potential impact of all risks related to structure and other
factors on any trading market for, or trading value of, your
notes. In addition, real or anticipated changes in our credit
ratings will generally affect the trading market for, or the
trading value of, your notes. Accordingly, you should consult
your own financial and legal advisors as to the risks entailed
by an investment in the notes and the suitability of investing
in the notes in light of your particular circumstances.
S-9
Use of
proceeds
We expect to receive net proceeds from this offering of
approximately $134.4 million after deducting estimated expenses
and underwriting discounts and commissions.
We have notified our banking regulators and the
U.S. Treasury of our intent to repurchase on
September 28, 2011 the remaining aggregate of
$262.5 million liquidation amount outstanding of
Series A Preferred Stock, contingent upon the consummation
of this offering and our recently announced offering of
depositary shares for a newly-issued series of our preferred
stock. We expect to fund such repurchase with the net proceeds
from this offering and our depositary shares offering, and other
available funds. If our repurchase of the Series A
Preferred Stock is consummated on September 28, 2011 as
anticipated, the redemption price will be approximately
$264.1 million ($262.5 million liquidation amount
outstanding, plus approximately $1.6 million of accrued and
unpaid dividends). In connection with the repurchase, during the
third quarter of 2011, we expect to recognize a reduction of
income available to common equity of approximately
$4.4 million related to the Series A Preferred Stock
issuance discount. While we intend to use the net proceeds from
this offering and our depositary shares offering, and other
available funds, to repurchase the remaining Series A
Preferred Stock, the consummation of this offering is not
conditioned upon the consummation of our depositary shares
offering nor the Series A Preferred Stock repurchase.
S-10
Capitalization
The following table sets forth, on a consolidated basis, our
capitalization as of June 30, 2011 on an actual basis and
as adjusted to give effect to (1) this offering, and
(2) our anticipated use of the proceeds from this offering
and the proceeds from the offering of depositary shares of
preferred stock, and other available funds, to repurchase all of
our remaining outstanding Series A Preferred Stock. You
should read the following table together with our consolidated
financial statements and notes thereto incorporated by reference
into this prospectus supplement and the accompanying prospectus.
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As of June 30, 2011
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As Adjusted
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for Notes
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Issuance,
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Depositary
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Share Issuance
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As
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and Series A
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Adjusted
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Preferred
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for Notes
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Stock
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Actual
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Issuance
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Repurchase(1)
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(Unaudited)
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(Dollars in thousands)
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Liabilities and Stockholders Equity
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Noninterest-bearing demand deposits
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$
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3,218,722
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$
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3,218,722
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$
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3,218,722
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Interest-bearing deposits, excluding Brokered CDs
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10,530,658
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10,530,658
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10,530,658
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Brokered CDs
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316,670
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316,670
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316,670
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Total deposits
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14,066,050
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14,066,050
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14,066,050
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Short-term funding
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3,255,670
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3,255,670
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3,255,670
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Long-term funding
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1,484,174
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1,619,438
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1,619,438
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Accrued expenses and other liabilities
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243,433
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243,433
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243,433
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Total liabilities
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$
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19,049,327
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$
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19,184,591
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$
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19,184,591
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Stockholders equity
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Preferred stock
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$
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258,051
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$
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258,051
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$
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62,800
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Common stock
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1,745
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1,745
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1,745
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Surplus
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1,581,594
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1,581,594
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1,581,594
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Retained earnings
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1,079,076
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1,079,076
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1,074,627
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Accumulated other comprehensive income
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79,345
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79,345
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79,345
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Treasury stock, cost
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(663
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)
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(663
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(663
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Total stockholders equity
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$
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2,999,148
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$
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2,999,148
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$
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2,799,448
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Total liabilities and stockholders equity
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$
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22,048,475
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$
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22,183,739
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$
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21,984,039
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Capital Adequacy
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Tier 1 common equity to risk-weighted assets(2)
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12.61
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%
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12.61
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%
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12.57
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%
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Tier 1 risk-based capital ratio
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16.03
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%
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16.03
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%
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14.55
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%
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Total risk-based capital ratio
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17.50
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%
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17.50
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%
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16.03
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%
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(1) |
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Assumes issuance of the notes and the depositary shares at the
public offering prices and repurchase of the Series A
Preferred Stock for an aggregate repurchase price of
approximately $264.1 million ($262.5 million
liquidation amount of the Series A Preferred Stock plus
$1.6 million of accrued and unpaid dividends). |
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(2) |
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Tier 1 common capital ratio = Tier 1 capital excluding
qualifying perpetual preferred stock and qualifying trust
preferred securities divided by risk-weighted assets. This is a
non-GAAP financial measure. |
S-11
Description
of the notes
We will issue the notes under our senior debt securities
indenture dated as of March 14, 2011, between Associated
Banc-Corp and The Bank of New York Mellon Trust Company,
N.A., as trustee, as supplemented by a board resolution (as
defined in the indenture). We refer to the senior debt
securities indenture, as supplemented, as the
indenture.
The following is a brief description of certain terms of the
notes and the indenture. It does not purport to be complete in
all respects. This description is subject to and qualified in
its entirety by reference to the indenture, which has been filed
as an exhibit to the registration statement to which this
prospectus supplement relates. Upon written or oral request to
us at our address set forth under Where You Can Find More
Information in the accompanying prospectus, we will
provide at no cost to the requester a copy of the indenture.
In this Description of the notes, unless otherwise
indicated, all references to Associated Banc-Corp,
we, us, and our are only to
Associated Banc-Corp and not to any of its subsidiaries.
General
The notes offered hereby represent a reopening of the
$300,000,000 aggregate principal amount of 5.125% Senior
Notes due 2016 that were issued on March 28, 2011 and form
a single series under the indenture. The notes offered hereby
will be substantially identical in all respects to the
outstanding 5.125% Senior Notes due 2016 that were issued
on March 28, 2011 (except for the public offering price and
the issue date), will have the same CUSIP number and will trade
interchangeably with the outstanding notes. After giving effect
to the $130,000,000 aggregate principal amount of the notes
offered hereby, the aggregate principal amount of the notes
outstanding will be $430,000,000. We may, from time to time,
without notice to or consent of the existing holders of the
notes, issue additional notes under the indenture having the
same terms as the notes in all respects, except for the issue
date, the issue price and the initial interest payment date.
The notes will be our unsecured, senior obligations and will
rank equally in right of payment with all of our other
unsubordinated debt from time to time outstanding. The notes
will be effectively subordinated to any secured indebtedness of
ours to the extent of the value of the collateral securing such
indebtedness. As of June 30, 2011, we had $300 million
(principal amount) of outstanding senior indebtedness, all
consisting of outstanding notes of this series, and no
outstanding secured indebtedness. The notes will not be
guaranteed by any of our subsidiaries. As of June 30, 2011,
we had approximately $383.3 million of outstanding
unsecured subordinated and junior unsecured subordinated debt.
We are a bank holding company that conducts substantially all of
our operations through subsidiaries. As a result, claims of the
holders of the notes will be structurally subordinated in right
of payment to claims of creditors of our subsidiaries, except to
the extent that we may be recognized, and receive payment, as a
creditor of those subsidiaries. Claims of our subsidiaries
creditors, other than Associated Banc-Corp, include substantial
amounts of long-term debt, deposit liabilities, federal funds
purchased, securities sold under repurchase agreements,
commercial paper and other short-term borrowings. As of
June 30, 2011, our subsidiaries had, in the aggregate,
outstanding debt and other liabilities, including deposits, of
approximately $18.4 billion (excluding intercompany
liabilities). All of such debt and other liabilities would rank
structurally senior to the notes in case of liquidation or
otherwise.
As a holding company, our ability to make payments on the notes
will depend primarily on the receipt of dividends and other
distributions from our subsidiaries. There are various
regulatory restrictions on the ability of Associated Bank,
National Association to pay dividends or make other payments to
us. See Business Supervision and
Regulation Banking Subsidiary Dividends in our
Annual Report on
Form 10-K
for the year ended December 31, 2010 and Risk
factors Risks relating to the notes The
notes are our obligations and not obligations of our
subsidiaries and will be structurally subordinated to the claims
of our subsidiaries creditors in this prospectus
supplement.
We may, from time to time, without notice or consent from the
holders of the notes, incur additional unsubordinated
indebtedness ranking equally in right of payment with the notes,
as well as secured indebtedness effectively ranking senior to
the notes to the extent of the value of the collateral securing
such indebtedness and
S-12
subordinated indebtedness ranking junior in right of payment to
the notes. Our subsidiaries may, without notice or consent of
the holders of the notes, incur additional debt (including
secured debt) and liabilities in the future, all of which would
rank structurally senior to the notes.
The notes are not deposits or other obligations of a bank or
savings association and are not insured or guaranteed by the
FDIC or any other governmental agency.
The notes will be issued in registered book-entry form without
coupons in denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
We do not intend to apply for listing of the notes on any
securities exchange.
Payment
of principal and interest
Payment of the full principal amount of the notes will be due on
March 28, 2016.
The notes will bear interest at the rate of 5.125% per annum.
Interest on the notes offered hereby will accrue from and
including March 28, 2011 (as if such notes had been issued
on such date). We will pay interest on the notes semi-annually
in arrears on March 28 and September 28 of each year, beginning
September 28, 2011. Interest will be paid to the person in
whose name such note is registered at the close of business on
every March 13 and September 13 (whether or not a business day)
preceding the related interest payment date. Interest on the
notes will be paid on the basis of a
360-day year
comprised of twelve
30-day
months.
If any interest payment date, redemption date or any maturity
date for the notes falls on a day which is not a business day,
the related payment of principal or interest on the notes will
be made on the next day that is a business day with the same
force and effect as if made on the date such payment was due,
and no interest will accrue on the amount payable for the period
from and after such interest payment date or maturity date, as
the case may be. A business day means any day that
is not a Saturday or Sunday, and that is not a day on which
banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
The notes are not subject to any sinking fund.
Optional
redemption by us
We will have the option to redeem the notes in whole or in part,
on or after February 28, 2016 (one month prior to
maturity), at a redemption price equal to 100% of the principal
amount of the notes to be redeemed plus accrued interest on the
notes to be redeemed to the date on which the notes are to be
redeemed.
We must give the holders of the notes to be redeemed notice of
the redemption not less than 10 days or more than
60 days before the redemption date. We will give the notice
in the manner described under Notices.
If we elect to redeem fewer than all the notes, the trustee will
select the particular notes to be redeemed on a pro rata basis
or by such other method of selection, if any, that the trustee
deems fair and appropriate.
The notes are not mandatorily redeemable at the option of the
holders.
Events of
default; waivers
An event of default under the indenture includes:
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default in the payment of interest on any note and the
continuance of that default for 30 days;
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default in the payment of principal of, or premium, if any, on,
any note at maturity;
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default in the performance by us of any of the other covenants
in the indenture, which continues for 60 days after notice
by the trustee to us or by the holders of not less than 25% in
principal amount of the outstanding notes to the trustee and
us; or
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S-13
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specified events of bankruptcy, insolvency, or reorganization of
Associated Banc-Corp or any principal subsidiary bank.
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If any event of default with respect to the notes occurs and is
continuing, either the trustee or the holders of not less than
25% in principal amount of the outstanding notes may declare the
principal amount of the notes to be due and payable immediately.
No such declaration is required upon specified events of
bankruptcy, insolvency or reorganization. Subject to certain
conditions, the holders of a majority in principal amount of the
outstanding notes may rescind and annul the declaration.
If an event of default occurs under the indenture by failure to
pay any principal payment at maturity or any interest payment
for a period of 30 days, the trustee may demand payment of
amounts then due and payable on the notes. Furthermore, if any
event of default occurs under the indenture, the trustee may, in
its discretion, proceed to enforce any covenant.
In addition, the holders of a majority in principal amount of
the outstanding notes may waive any past default with respect to
the notes, except for a default:
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in any principal, premium or interest payment on the
notes; or
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in respect of a covenant which cannot be amended or modified
without the consent of the holder of each outstanding note.
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Subject to the duty to act with the required standard of care
during a default, the trustee is not obligated to exercise any
of its rights or powers under the indenture at the request or
direction of any of the holders of notes, unless the holders
have offered to the trustee security or indemnity reasonably
satisfactory to the trustee. The indenture provides that the
holders of a majority in principal amount of outstanding notes
may direct the time, method and place of conducting any
proceeding for any remedy available to the trustee, or
exercising any trust or other power conferred on the trustee.
The trustee, however, may decline to act if the direction is
contrary to law or the indenture.
No holder will have the right to institute any proceeding with
respect to the indenture, or for the appointment of a receiver
or a trustee, or for any other remedy, unless:
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the holder has previously given to the trustee written notice of
a continuing event of default with respect to the notes;
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the holders of at least 25% in aggregate principal amount of the
outstanding notes have made written request to the trustee to
institute a proceeding, and those holders have offered the
trustee reasonable indemnity;
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the trustee has failed to institute the proceeding within
60 days after the notice, request and offer of reasonable
indemnity; and
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no direction inconsistent with such written request has been
given to the trustee during such
60-day
period by the holders of a majority in aggregate principal
amount of the outstanding notes.
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These limitations do not apply to a suit instituted by a holder
of a note for the enforcement of payment of the principal of or
any premium of interest on the note on or after the maturity
date.
Modification
and waiver
The indenture provides that we, together with the trustee, may
enter into supplemental indentures without the consent of any
holders of notes to, among other things:
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evidence the assumption by another person of our obligations;
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add covenants for the benefit of the holders;
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add any additional events of default;
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add to or change the indenture to permit or facilitate the
issuance of notes in bearer form or to permit or facilitate the
issue of notes in uncertificated form;
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S-14
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secure the notes;
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evidence the acceptance of appointment by a successor
trustee; or
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cure any ambiguity or correct any inconsistency in the indenture
or make other changes, provided that any such action does not
adversely affect the interests of the holders in any material
respect.
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Other amendments and modifications of the indenture may be made
with the consent of the holders of not less than a majority of
the aggregate principal amount of outstanding notes. No
modification or amendment may, however, without the consent of
each holder of outstanding notes:
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change the stated maturity of the principal of, or any
installment of principal or interest on the notes;
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reduce the principal amount of (or premium, if any) or the
interest rate on the notes or the principal amount due upon
acceleration of a note;
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change the place or currency of payment of principal of (or
premium, if any), or the interest on the notes;
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impair the right to sue for the enforcement of any such payment
on or with respect to the notes;
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reduce the percentage of holders of notes necessary to modify or
amend the indenture; or
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modify the foregoing requirements or reduce the percentage of
outstanding notes necessary to waive compliance with certain
covenants in the indenture or for waiver of certain defaults.
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The indenture provides that in determining whether the holders
of the requisite principal amount of the outstanding notes have
given, made or taken any request, demand, authorization,
direction, notice, consent or waiver under the indenture, notes
owned by Associated Banc-Corp or any affiliate of Associated
Banc-Corp shall be disregarded and deemed not to be outstanding.
Consolidation,
merger and sale of assets
We may, without the consent of the holders of the notes,
consolidate with or merge into any other person or transfer or
lease our assets substantially as an entirety to another person,
or permit another person to consolidate with or merge into us,
as long as:
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the successor is a corporation, partnership or trust organized
and validly existing under the laws of the United States, any
state or the District of Columbia;
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the successor (if not Associated Banc-Corp) expressly assumes,
by supplemental indenture, all of our obligations on the notes
and under the indenture;
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immediately after giving effect to the transaction, no event of
default, and no event which, after notice or lapse of time or
both, would become an event of default, shall have occurred and
be continuing; and
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we deliver to the trustee an officers certificate and an
opinion of counsel, each stating that such consolidation,
merger, conveyance, transfer or lease of our properties and
assets complies with the indenture and that all conditions
precedent to such transaction have been complied with.
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Limitation
on disposition of stock of principal subsidiary bank
The indenture contains a covenant that provides, so long as any
of the notes are outstanding, neither we nor any of our
subsidiaries will sell, grant a security interest in or
otherwise dispose of any shares (or any securities convertible
into, or options, warrants or rights to purchase, shares) of
voting stock (other than directors qualifying shares) of
any principal subsidiary bank, except to us or any intermediate
subsidiary. In addition, the covenant provides that neither we
nor any intermediate subsidiary will permit any principal
subsidiary bank to issue any shares (or securities convertible
into, or options, warrants or rights to purchase, shares) of its
voting stock (other than directors qualifying shares),
except to us or any intermediate subsidiary. We further will not
permit any intermediate subsidiary that owns any shares (or any
securities convertible into, or options, warrants or rights to
purchase, shares) of voting stock of any principal subsidiary
bank to cease to be an intermediate subsidiary.
S-15
The above covenant is subject to our rights in connection with a
consolidation or merger of us with or into another person or a
sale of our assets substantially as an entirety. The covenant
also does not apply if:
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(a) the sale, grant of a security interest or other
disposition is made for fair market value on the date thereof,
as determined by our board of directors and evidenced by a duly
adopted resolution, and (b) after giving effect to such
disposition, we and any one or more of our intermediate
subsidiaries will collectively own at least 80% of the issued
and outstanding voting stock of the principal subsidiary bank,
free and clear of any security interest; or
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the sale, grant of a security interest or other disposition is
made in compliance with an order or direction of a court or
regulatory authority of competent jurisdiction.
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The above covenant also does not restrict our principal bank
subsidiary from being consolidated with or merged into another
domestic banking institution, if after the merger or
consolidation (A) we and any one or more intermediate
subsidiaries collectively own at least 80% of the voting stock
of the resulting banking institution and (B) no event of
default, and no event which, after notice or lapse of time or
both, would become an event of default under the indenture shall
have happened and be continuing.
In the indenture:
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intermediate subsidiary means a subsidiary
(i) that is organized under the laws of the United States,
any state or the District of Columbia, and (ii) of which
all the shares of each class of voting stock issued and
outstanding, and all securities convertible into, and options,
warrants and rights to subscribe for or purchase shares of such
voting stock, are owned directly by us or another intermediate
subsidiary, free and clear of any security interest;
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principal subsidiary bank means any of our
subsidiaries which (1)(A) is an institution which accepts
deposits that the depositor has a legal right to withdraw on
demand and engages in the business of making commercial loans or
(B) is a trust company and (2) has total assets equal
to 30% or more of our consolidated assets determined as of the
date of the most recent audited financial statements of such
entities;
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subsidiary means a person (defined as any
individual, corporation, partnership, joint venture, trust,
unincorporated organization or government or any agency or
political subdivision thereof) more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by us or
by one or more of our other subsidiaries, or by us and one or
more of our other subsidiaries (for the purposes of this
definition, voting stock means stock which
ordinarily has voting power for the election of directors,
managers or trustees, whether at all times or only so long as no
senior class of stock has such voting power by reason of any
contingency); and
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voting stock means stock of the class or
classes having general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers
or trustees of such person (irrespective of whether or not at
the time stock of any other class or classes shall have
contingent voting rights).
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Defeasance
and covenant defeasance
The indenture contains a provision that permits us to elect:
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defeasance, which would discharge us from all of our obligations
(subject to limited exceptions) with respect to the notes; and/or
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covenant defeasance, which would release us from our obligations
under specified covenants and the consequences of the occurrence
of an event of default resulting from a breach of these
covenants.
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To make either of the above elections, we must deposit in trust
with the trustee money
and/or
U.S. government obligations which, through the payment of
principal and interest in accordance with their terms, will
provide sufficient money, without reinvestment, to repay in full
the notes.
S-16
In the indenture, U.S. government obligations
are:
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direct obligations of the U.S. or of an agency or
instrumentality of the U.S., in either case that is guaranteed
as a full faith and credit obligation of the U.S. and that
is not callable or redeemable by us; and
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certain depositary receipts with respect to an obligation
referred to immediately above.
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As a condition to defeasance or covenant defeasance, we must
deliver to the trustee an opinion of counsel that the holders of
the notes will not recognize income, gain, or loss for federal
income tax purposes as a result of the defeasance or covenant
defeasance and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have
been the case if defeasance or covenant defeasance had not
occurred. That opinion, in the case of defeasance, but not
covenant defeasance, must refer to and be based upon a ruling
received by us from the Internal Revenue Service or published as
a revenue ruling or upon a change in applicable federal income
tax law.
If we exercise our covenant defeasance option with respect to
the notes, then even if there were a default under the related
covenant, payment of the notes could not be accelerated. We may
exercise our defeasance option with respect to the notes even if
we previously had exercised our covenant defeasance option. If
we exercise our defeasance option, payment of the notes may not
be accelerated because of any event of default. If we exercise
our covenant defeasance option and acceleration were to occur,
the realizable value at the acceleration date of the money and
U.S. government obligations in the defeasance trust could
be less than the principal and interest then due on the notes.
This is because the required deposit of money
and/or
U.S. government obligations in the defeasance trust is
based upon scheduled cash flows rather than market value, which
will vary depending upon interest rates and other factors.
Persons
deemed owners
We, the trustee and any of our and the trustees agents may
treat the registered owner of any note as the absolute owner of
that security, whether or not the note is overdue and despite
any notice to the contrary, for any purpose.
Governing
law
The indenture and notes will be governed by, and construed in
accordance with, the laws of the State of New York.
The
trustee
The Bank of New York Mellon Trust Company, N.A. is the
trustee for the notes. The trustee has all of the duties and
responsibilities specified under the Trust Indenture Act.
Other than its duties in a case of default, the trustee is under
no obligation to exercise any of the powers under the indenture
at the request, order or direction of any holders of notes
unless offered reasonable indemnification. We and some of our
subsidiaries maintain deposits and conduct other banking
transactions with the trustee in the ordinary course of business.
Book-entry,
delivery and form
Book-entry
system
The notes will be issued in fully registered form in the name of
Cede & Co., as nominee of The Depository
Trust Company (DTC). One or more fully
registered certificates will be issued as global notes in the
aggregate principal amount of the notes. Such global notes will
be deposited with or on behalf of DTC and may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of
DTC to DTC or another nominee of DTC or by DTC or any nominee to
a successor of DTC or a nominee of such successor.
So long as DTC, or its nominee, is the registered owner of a
global note, DTC or such nominee, as the case may be, will be
considered the sole owner or holder of the notes represented by
such global note for all purposes under the indenture. Except as
set forth in the accompanying prospectus, owners of beneficial
interests in a global note will not be entitled to have the
notes represented by such global note registered in their names,
will not receive or be entitled to receive physical delivery of
such notes in definitive form and will not be considered the
owners or holders
S-17
thereof under the indenture. Accordingly, each person owning a
beneficial interest in a global note must rely on the procedures
of DTC for such global note and, if such person is not a
participant in DTC (as described below), on the procedures of
the participant through which such person owns its interest, to
exercise any rights of a holder under the indenture.
Owners of beneficial interests in a global note may elect to
hold their interests in such global note either in the United
States through DTC or outside the United States through
Clearstream Banking, société anonyme
(Clearstream), or Euroclear Bank, S.A./N.V., or its
successor, as operator of the Euroclear System
(Euroclear), if they are a participant of such
system, or indirectly through organizations that are
participants in such systems. Interests held through Clearstream
and Euroclear will be recorded on DTCs books as being held
by the U.S. depositary for each of Clearstream and
Euroclear, which U.S. depositaries will in turn hold
interests on behalf of their participants customers
securities accounts. Citibank, N.A. will act as depositary for
Clearstream and JPMorgan Chase Bank, N.A. will act as depositary
for Euroclear (in such capacities, the
U.S. Depositaries).
As long as the notes are represented by the global notes, we
will pay principal of and interest on those notes to or as
directed by DTC as the registered holder of the global notes.
Payments to DTC will be in immediately available funds by wire
transfer. DTC will credit the relevant accounts of their
participants on the applicable date. Neither we nor the trustee
will be responsible for making any payments to participants or
customers of participants or for maintaining any records
relating to the holdings of participants and their customers,
and each person owning a beneficial interest will have to rely
on the procedures of the depositary and its participants.
We have been advised by DTC, Clearstream and Euroclear,
respectively, as follows:
DTC
DTC has advised us that it is a limited-purpose trust company
organized under the New York Banking Law, a banking
organization within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a clearing
corporation within the meaning of the New York Uniform
Commercial Code, and a clearing agency registered
pursuant to the provisions of Section 17A of the Exchange
Act. DTC holds securities deposited with it by its participants
and facilitates the settlement of transactions among its
participants in such securities through electronic computerized
book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities
certificates. DTCs participants include securities brokers
and dealers, banks, trust companies, clearing corporations and
certain other organizations, some of whom (and/or their
representatives) own DTC. Access to DTCs book-entry system
is also available to others, such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
According to DTC, the foregoing information with respect to DTC
has been provided to the financial community for informational
purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
Clearstream
Clearstream advises that it is incorporated under the laws of
Luxembourg as a professional depositary. Clearstream holds
securities for its participating organizations
(Clearstream Participants) and facilitates the
clearance and settlement of securities transactions between
Clearstream Participants through electronic book-entry changes
in accounts of Clearstream Participants, thereby eliminating the
need for physical movement of certificates. Clearstream,
Luxembourg provides to Clearstream Participants, among other
things, services for safekeeping, administration, clearance and
settlement of internationally traded securities and securities
lending and borrowing. Clearstream interfaces with domestic
markets in several countries. As a professional depositary,
Clearstream is subject to regulation by the Luxembourg
Commission for the Supervision of the Financial Sector
(Commission de Surveillance du Secteur Financier). Clearstream
Participants are recognized financial institutions around the
world, including underwriters, securities brokers and dealers,
banks, trust companies, clearing corporations and certain other
organizations and may include the underwriter. Indirect access
to Clearstream is also available to others, such as banks,
brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a Clearstream
Participant, either directly or indirectly.
S-18
Distributions with respect to interests in the notes held
beneficially through Clearstream will be credited to cash
accounts of Clearstream Participants in accordance with its
rules and procedures, to the extent received by the
U.S. Depositary for Clearstream.
Euroclear
Euroclear advises that it was created in 1968 to hold securities
for participants of Euroclear (Euroclear
Participants) and to clear and settle transactions between
Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the
need for physical movement of certificates and any risk from
lack of simultaneous transfers of securities and cash. Euroclear
includes various other services, including securities lending
and borrowing and interfaces with domestic markets in several
countries. Euroclear is operated by Euroclear Bank S.A./N.V.
(the Euroclear Operator). All operations are
conducted by the Euroclear Operator, and all Euroclear
securities clearance accounts and Euroclear cash accounts are
accounts with the Euroclear Operator. Euroclear Participants
include banks (including central banks), securities brokers and
dealers and other professional financial intermediaries and may
include the underwriter. Indirect access to Euroclear is also
available to other firms that clear through or maintain a
custodial relationship with a Euroclear Participant, either
directly or indirectly.
The Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System, or the
Euroclear Terms and Conditions, and applicable Belgian law
govern securities clearance accounts and cash accounts with the
Euroclear Operator. Specifically, these terms and conditions
govern:
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transfers of securities and cash within Euroclear;
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withdrawal of securities and cash from Euroclear; and
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receipt of payments with respect to securities in Euroclear.
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All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities
clearance accounts. The Euroclear Operator acts under the terms
and conditions only on behalf of Euroclear Participants and has
no record of or relationship with persons holding securities
through Euroclear Participants.
Distributions with respect to interests in the notes held
beneficially through Euroclear will be credited to the cash
accounts of Euroclear Participants in accordance with the
Euroclear Terms and Conditions, to the extent received by the
U.S. Depositary for the Euroclear Operator.
Settlement
Investors in the notes will be required to make their initial
payment for the notes in immediately available funds. Secondary
market trading between DTC participants will occur in the
ordinary way in accordance with DTC rules and will be settled in
immediately available funds. Secondary market trading between
Clearstream Participants
and/or
Euroclear Participants will occur in the ordinary way in
accordance with the applicable rules and operating procedures of
Clearstream and Euroclear and will be settled using the
procedures applicable to conventional eurobonds in immediately
available funds.
Cross-market transfers between persons holding directly or
indirectly through DTC, on the one hand, and directly or
indirectly through Clearstream Participants or Euroclear
Participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European
international clearing system by the U.S. depositary for
such clearing system; however, such cross-market transactions
will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system
in accordance with its rules and procedures and within its
established deadlines (based on European time). The relevant
European international clearing system will, if the transaction
meets its settlement requirements, deliver instructions to the
U.S. Depositary to take action to effect final settlement
on its behalf by delivering or receiving notes in DTC, and
making or receiving payment in accordance with normal procedures
for same-day
funds settlement applicable to DTC. Clearstream Participants and
Euroclear Participants may not deliver instructions directly to
their respective U.S. Depositaries.
Because of time-zone differences, credits of notes received in
Clearstream or Euroclear as a result of a transaction with a DTC
participant will be made during subsequent securities settlement
processing and dated the business day
S-19
following the DTC settlement date. Such credits or any
transactions in such notes settled during such processing will
be reported to the relevant Clearstream Participants or
Euroclear Participants on such business day. Cash received in
Clearstream or Euroclear as a result of sales of notes by or
through a Participant customer or a Euroclear participant to a
DTC participant will be received with value on the DTC
settlement date but will be available in the relevant
Clearstream or Euroclear cash account only as of the business
day following settlement in DTC.
Although DTC, Clearstream and Euroclear have agreed to the
foregoing procedures in order to facilitate transfers of notes
among participants of DTC, Clearstream and Euroclear, they are
under no obligation to perform or continue to perform such
procedures and such procedures may be discontinued at any time.
The information in this section concerning DTC, Clearstream,
Euroclear and DTCs book-entry system has been obtained
from sources that we believe to be reliable (including DTC,
Clearstream and Euroclear), but we take no responsibility for
the accuracy thereof.
Neither we, the trustee nor the underwriter will have any
responsibility or obligation to participants, or the persons for
whom they act as nominees, with respect to the accuracy of the
records of DTC, its nominee or any participant with respect to
any ownership interest in the notes or payments to, or the
providing of notice to participants or beneficial owners.
S-20
Certain
United States federal income tax consequences
The following is a summary of certain United States federal
income tax consequences of the acquisition, ownership and
disposition of the notes by U.S. Holders (as defined below)
and
Non-U.S. Holders
(as defined below), but does not purport to be a complete
analysis of all the potential tax considerations. This summary
is based upon the United States Internal Revenue Code of 1986,
as amended (the Code), the Treasury Regulations (the
Regulations) promulgated thereunder, and
administrative and judicial interpretations thereof, all as of
the date hereof and all of which are subject to change, possibly
on a retroactive basis. This summary is limited to the tax
consequences with respect to notes that are purchased by an
initial holder at their original issue price for cash and that
are held as capital assets within the meaning of
Section 1221 of the Code (generally, property held for
investment). This summary does not address the tax consequences
to subsequent purchasers of the notes. This summary does not
purport to deal with all aspects of United States federal income
taxation that might be relevant to particular holders in light
of their circumstances or status, nor does it address specific
tax consequences that may be relevant to particular holders
(including, for example, financial institutions, broker-dealers,
traders in securities that elect
mark-to-market
treatment, insurance companies, partnerships or other
pass-through entities, United States expatriates, tax-exempt
organizations, U.S. Holders that have a functional currency
other than the United States dollar, or persons who hold notes
as part of a straddle, hedge, conversion or other integrated
financial transaction). In addition, this summary does not
address tax consequences arising under the unearned income
Medicare contribution tax pursuant to the Health Care and
Education Reconciliation Act of 2010, nor does it address United
States federal alternative minimum, estate and gift tax
consequences or consequences under the tax laws of any state,
local or foreign jurisdiction. We have not sought, and will not
seek, any ruling from the Internal Revenue Service (the
IRS) with respect to the statements made and the
conclusions reached in this summary, and we cannot assure you
that the IRS will agree with such statements and conclusions.
If a partnership, or other entity treated as a partnership for
United States federal income tax purposes, holds notes, the tax
treatment of a partner in the partnership generally will depend
upon the status of the partner and the activities of the
partnership. If you are a partner in a partnership holding
notes, you should consult your tax advisor.
THIS SUMMARY IS FOR GENERAL INFORMATION ONLY. PROSPECTIVE
PURCHASERS OF THE NOTES ARE URGED TO CONSULT THEIR OWN TAX
ADVISORS CONCERNING THE UNITED STATES FEDERAL INCOME TAXATION
AND OTHER TAX CONSEQUENCES TO THEM OF ACQUIRING, OWNING AND
DISPOSING OF THE NOTES, AS WELL AS THE APPLICATION OF STATE,
LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS.
For purposes of the following summary, a
U.S. Holder is a beneficial owner of notes that
is, for United States federal income tax purposes, (1) a
citizen or individual resident of the United States; (2) a
corporation or other entity taxable as a corporation created or
organized under the laws of the United States, any state
thereof, or the District of Columbia; (3) an estate, the
income of which is subject to United States federal income tax
regardless of its source; or (4) a trust, if a court within
the United States is able to exercise primary supervision over
the trusts administration and one or more United States
persons have the authority to control all of its substantial
decisions or if a valid election to be treated as a United
States person for United States federal income tax purposes is
in effect with respect to such trust. A
Non-U.S. Holder
is a beneficial owner of notes that is neither a
U.S. Holder nor a partnership for United States federal
income tax purposes.
The Regulations provide specific rules regarding whether
additional debt instruments issued in a reopening will be
considered part of the same issue, with the same issue price and
yield to maturity, as the original debt instruments for United
States federal income tax purposes. As described in this
prospectus supplement, we expect that the notes offered hereby
will be considered part of our issuance of notes on
March 28, 2011.
United
States federal income taxation of U.S. Holders
Payments
of stated interest
Stated interest on the notes will generally be taxable to a
U.S. Holder as ordinary income at the time such interest is
received or accrued, depending on the holders regular
method of accounting for United States federal income tax
purposes.
S-21
Notes
Purchased at a Premium
If you purchase your note for an amount in excess of its
principal amount, you may elect to treat the excess as
amortizable bond premium. If you make this election, you will
reduce the amount required to be included in your income each
year with respect to interest on your note by the amount of
amortizable bond premium allocable to that year, based on your
notes yield to maturity. If you make an election to
amortize bond premium, it will apply to all debt instruments,
other than debt instruments the interest on which is excludible
from gross income, that you hold at the beginning of the first
taxable year to which the election applies or that you
thereafter acquire, and you may not revoke it without the
consent of the Internal Revenue Service.
Disposition
of the notes
Upon the sale, exchange or other taxable disposition of a note,
a U.S. Holder will generally recognize taxable gain or loss
equal to the difference, if any, between (i) the sum of all
cash plus the fair market value of all other property received
on such disposition (except to the extent such cash or other
property is attributable to accrued but unpaid interest, which
is treated as interest as discussed under
Payments of stated interest) and
(ii) such holders adjusted tax basis in the note. A
U.S. Holders adjusted tax basis in a note generally
will equal the cost of the note to such holder. Any gain or loss
recognized on the disposition of a note generally will be
capital gain or loss, and will be long-term capital gain or loss
if, at the time of such disposition, the U.S. Holders
holding period for the note is more than one year. Long-term
capital gain of non-corporate U.S. Holders is generally
taxed at preferential rates. The deductibility of capital loss
by a U.S. Holder is subject to limitations.
Backup
withholding and information reporting
For each calendar year in which the notes are outstanding, we
generally are required to provide the IRS with certain
information, including the beneficial owners name, address
and taxpayer identification number, the aggregate amount of
interest paid to that beneficial owner during the calendar year
and the amount of tax withheld, if any. This obligation,
however, does not apply with respect to payments to certain
types of U.S. Holders, including corporations and
tax-exempt organizations, provided that they establish
entitlement to an exemption.
In the event that a U.S. Holder subject to the reporting
requirements described above fails to provide its correct
taxpayer identification number in the manner required by
applicable law, or underreports its tax liability, we, our agent
or paying agents, or a broker may be required to
backup withhold a tax at a rate of 28% from each
payment on the notes and on the proceeds from a sale of the
notes.
Backup withholding is not an additional tax and may generally be
refunded or credited against the U.S. Holders United
States federal income tax liability, provided that the required
procedures are followed, and the required information is timely
furnished to the IRS.
U.S. Holders should consult their own tax advisors
regarding their qualifications for an exemption from backup
withholding, and the procedure for establishing such exemption,
if applicable.
United
States federal income taxation of
Non-U.S.
Holders
Payments
of stated interest
Subject to the discussion of backup withholding below, payments
of interest on the notes to a
Non-U.S. Holder
will generally not be subject to United States federal
withholding tax under the portfolio interest
exemption, provided that:
1. the
Non-U.S. Holder
does not actually or constructively own 10% or more of the total
combined voting power of all classes of our stock entitled to
vote;
2. the
Non-U.S. Holder
is not a controlled foreign corporation that, for United States
federal income tax purposes, is related (within the meaning of
Section 864(d)(4) of the Code) to us;
3. the
Non-U.S. Holder
is not a bank described in Section 881(c)(3)(A) of the
Code; and
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4. either (a) the beneficial owner of the notes
certifies on IRS
Form W-8BEN
(or a suitable substitute form or successor form), under
penalties of perjury, that it is not a
U.S. person (as defined in the Code) and
provides its name and address, or (b) a securities clearing
organization, bank or other financial institution that holds
customers securities in the ordinary course of its trade
or business (a financial institution) and holds the
notes on behalf of the beneficial owner certifies to us or our
agent, under penalties of perjury, that a properly executed IRS
Form W-8BEN
(or a suitable substitute form or successor form) has been
received from the beneficial owner by it or by a financial
institution between it and the beneficial owner and furnishes us
with a copy thereof. If a
Non-U.S. Holder
holds the notes through certain foreign intermediaries or
certain foreign partnerships, the foreign intermediaries or
foreign partnerships must also satisfy the certification
requirements imposed by the applicable Regulations.
If a
Non-U.S. Holder
cannot satisfy the requirements of the portfolio interest
exemption, payments of stated interest made to such
Non-U.S. Holder
will be subject to United States federal withholding tax at a
rate of 30% unless the beneficial owner of the note provides us
or our agent with a properly executed:
1. IRS
Form W-8BEN
(or a suitable substitute form or successor form) claiming,
under penalties of perjury, an exemption from, or reduction in,
withholding tax under an applicable income tax treaty, or
2. IRS
Form W-8ECI
(or a suitable substitute form or successor form) stating that
interest paid on the note is not subject to withholding tax
because it is effectively connected with a United States trade
or business or, if an income tax treaty applies, it is
attributable to a permanent establishment or fixed base
maintained in the United States of the beneficial owner (in
which case such interest will be subject to regular graduated
United States tax rates as described below).
Non-U.S. Holders
should consult their own tax advisors about the specific methods
for satisfying these requirements. A claim for exemption will
not be valid if the person receiving the applicable form has
actual knowledge or reason to know that the statements on the
form are false.
If interest on the notes is effectively connected with a United
States trade or business of the beneficial owner (and, if
required by an applicable income tax treaty, attributable to a
United States permanent establishment or fixed base), the
Non-U.S. Holder,
although exempt from the withholding tax described above, will
be subject to United States federal income tax on such interest
on a net income basis in the same manner as if it were a
U.S. Holder. In addition, if such
Non-U.S. Holder
is a foreign corporation, it may be subject to a branch profits
tax at a rate of 30% (unless reduced by an applicable income tax
treaty) in respect of such interest.
Disposition
of the notes
Except with respect to accrued and unpaid interest, a
Non-U.S. Holder
will not be subject to United States federal income tax on gain
or income realized on the sale, exchange or other disposition of
a note unless (a) the
Non-U.S. Holder
is an individual who is present in the United States for a
period or periods aggregating 183 or more days in the taxable
year of the disposition and certain other conditions are met, or
(b) such gain or income is effectively connected with a
United States trade or business (and, if required by an
applicable income tax treaty, attributable to a United States
permanent establishment or fixed base). Accrued and unpaid
interest realized on a sale, exchange or other disposition of a
note will be treated as discussed under
Payments of stated interest.
A
Non-U.S. Holder
described in (a) above will be subject to a flat 30% United
States federal income tax on the gain derived from the sale,
which may be offset by United States source capital loss, even
though the
Non-U.S. Holder
is not considered a resident of the United States. A
Non-U.S. Holder
described in (b) above will be subject to United States
federal income taxation in the same manner as if it were a
U.S. Holder, and if such
Non-U.S. Holder
is a foreign corporation, it may be subject to the branch
profits tax at a rate of 30% (unless reduced by an applicable
income tax treaty).
Backup
withholding and information reporting
United States backup withholding tax will not apply to payments
of interest on a note or proceeds from the sale or other
disposition of a note payable to a
Non-U.S. Holder
if the certification described in Payments of
stated interest is duly provided by such
Non-U.S. Holder
or the
Non-U.S. Holder
otherwise establishes an exemption, provided that the payor does
not have actual knowledge or reason to know that the holder is a
U.S. person or that the
S-23
conditions of any claimed exemption are not satisfied. Certain
information reporting still may apply to interest payments even
if an exemption from backup withholding is established. Copies
of any information returns reporting interest payments and any
withholding also may be made available to the tax authorities in
the country in which a
Non-U.S. Holder
resides under the provisions of an applicable income tax treaty.
Backup withholding is not an additional tax. Any amounts
withheld under the backup withholding tax rules from a payment
to a
Non-U.S. Holder
will be allowed as a refund or a credit against such
Non-U.S. Holders
United States federal income tax liability, provided that the
requisite procedures are followed, and the required information
is timely furnished to the IRS.
Non-U.S. Holders
should consult their own tax advisors regarding their particular
circumstances and the availability of and procedure for
establishing an exemption from backup withholding.
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Certain
ERISA considerations
The following is a summary of certain considerations associated
with the purchase of the notes, holding and, to the extent
relevant, disposition of notes by an employee benefit plan
subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended (ERISA), a plan
described in Section 4975 of the Code, including an
individual retirement account (IRA) or a Keogh plan,
a plan subject to provisions under applicable federal, state,
local,
non-U.S. or
other laws or regulations that are similar to the provisions of
Title I of ERISA or Section 4975 of the Code
(Similar Laws) and any entity whose underlying
assets include plan assets by reason of any such
employee benefit or retirement plans investment in such
entity (each of which we refer to as a Plan).
General fiduciary matters. ERISA and the Code
impose certain duties on persons who are fiduciaries of a Plan
subject to Title I of ERISA or Section 4975 of the
Code (an ERISA Plan) and prohibit certain
transactions involving the assets of an ERISA Plan with its
fiduciaries or other interested parties. In general, under ERISA
and the Code, any person who exercises any discretionary
authority or control over the administration of such an ERISA
Plan or the management or disposition of the assets of such an
ERISA Plan, or who renders investment advice for a fee or other
compensation to such an ERISA Plan, is generally considered to
be a fiduciary of the ERISA Plan. Plans that are governmental
plans (as defined in Section 3(32) of ERISA), certain
church plans (as defined in Section 3(33) of ERISA or
Section 4975(g)(3) of the Code) and
non-U.S. plans
(as described in Section 4(b)(4) of ERISA) are not subject
to the requirements of ERISA or Section 4975 of the Code
(but may be subject to similar prohibitions under Similar Laws).
In considering the purchase, holding and, to the extent
relevant, disposition of notes with a portion of the assets of a
Plan, a fiduciary should determine whether the investment is in
accordance with the documents and instruments governing the Plan
and the applicable provisions of ERISA, the Code or any Similar
Law relating to a fiduciarys duties to the Plan including,
without limitation, the prudence, diversification, delegation of
control and prohibited transaction provisions of ERISA, the Code
and any other applicable Similar Laws.
Prohibited transaction
issues. Section 406 of ERISA prohibits Plans
subject to ERISA from engaging in specified transactions
involving plan assets with persons or entities who are
parties in interest, within the meaning of
Section 3(14) of ERISA, and Section 4975 of the Code
imposes an excise tax on certain disqualified
persons, within the meaning of Section 4975 of the
Code, who engage in similar transactions, in each case unless an
exemption is available. A party in interest or disqualified
person who engages in a non-exempt prohibited transaction may be
subject to excise taxes and other penalties and liabilities
under ERISA and the Code. In addition, the fiduciary of an ERISA
Plan that engages in such a non-exempt prohibited transaction
may be subject to penalties and liabilities under ERISA and the
Code. In the case of an IRA, the occurrence of a prohibited
transaction could cause the IRA to lose its tax-exempt status.
The underwriter or we may be parties in interest or disqualified
persons with respect to ERISA Plans and the purchase, holding
and/or, to the extent relevant, disposition of notes by an ERISA
Plan with respect to which we, the underwriter or certain of our
or its affiliates is considered a party in interest or a
disqualified person may constitute or result in a direct or
indirect prohibited transaction under Section 406 of ERISA
and/or
Section 4975 of the Code, unless the investment is acquired
and is held (and, to the extent applicable, disposed of) in
accordance with an applicable statutory, class or individual
prohibited transaction exemption. In this regard, the
U.S. Department of Labor has issued prohibited transaction
class exemptions, or PTCEs, that may apply to the
acquisition, holding and/or, to the extent relevant, disposition
of the notes. These class exemptions include, without
limitation,
PTCE 84-14
respecting transactions determined by independent qualified
professional asset managers,
PTCE 90-1
respecting insurance company pooled separate accounts,
PTCE 91-38
respecting bank collective investment funds,
PTCE 95-60
respecting life insurance company general accounts and
PTCE 96-23
respecting transactions determined by in-house asset managers.
In addition, Section 408(b)(17) of ERISA and
Section 4975(d)(20) of the Code each provides a limited
exemption, commonly referred to as the service provider
exemption, from the prohibited transaction provisions of
ERISA and Section 4975 of the Code for certain transactions
between an ERISA Plan and a person that is a party in interest
and/or a
disqualified person (other than a fiduciary or an affiliate
that, directly or indirectly, has or exercises any discretionary
authority or control or renders any investment advice with
respect to the assets of any ERISA Plan involved in the
transaction) solely by reason of providing services to the Plan
or by relationship to a service provider, provided that the
ERISA Plan pays no more than adequate consideration in
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connection with the transaction. There can be no assurance that
all of the conditions of any such exemptions will be satisfied
at the time that the notes are acquired by a purchaser, or
thereafter, if the facts relied upon for utilizing a prohibited
transaction exemption change.
Because of the foregoing, the notes should not be acquired or
held by any person investing plan assets of any
Plan, unless such acquisition and holding will not constitute a
non-exempt prohibited transaction under ERISA or
Section 4975 of the Code or similar violation of any
applicable Similar Laws for which there is no applicable
statutory, regulatory or administrative exemption.
Representation. Each purchaser and holder of
notes will be deemed to have represented and warranted that
either (1) it is not a Plan, and no portion of the assets
used to acquire or hold the notes constitutes assets of any Plan
or (2) the purchase and holding of a note will not
constitute a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code or
similar violation under any applicable Similar Laws for which
there is no applicable statutory, regulatory or administrative
exemption.
The foregoing discussion is general in nature and is not
intended to be all-inclusive. Due to the complexity of these
rules and the penalties that may be imposed upon persons
involved in non-exempt prohibited transactions, it is
particularly important that fiduciaries or other persons
considering purchasing notes on behalf of, or with the assets
of, any Plan, consult with their counsel regarding the potential
applicability of ERISA, Section 4975 of the Code and any
Similar Laws to such investment and whether an exemption would
be applicable to the purchase and holding (and, to the extent
applicable, disposition) of the notes. The acquisition, holding
and, to the extent relevant, disposition of notes by or to any
Plan is in no respect a representation by us or any of our
affiliates or representatives that such an investment meets all
relevant legal requirements with respect to investments by such
Plans generally or any particular Plan, or that such an
investment is appropriate for Plans generally or any particular
Plan.
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Underwriting
We and the underwriter for the offering named below have entered
into an underwriting agreement with respect to the notes. Under
the terms and subject to the conditions in the underwriting
agreement, we have agreed to sell to the underwriter, and the
underwriter has agreed to purchase from us, the principal amount
of notes that appears opposite its name in the table below:
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Principal Amount
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Underwriter
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of Notes
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Goldman, Sachs & Co.
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U.S.$
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130,000,000
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Total
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U.S.$
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130,000,000
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The underwriting agreement provides that the underwriter will
purchase all the notes if any of them are purchased.
The underwriter initially proposes to offer the notes to the
public at the public offering price that appears on the cover
page of this prospectus supplement. The underwriter may offer
the notes to selected dealers at the public offering price minus
a concession of up to 0.20% of the principal amount of the
notes. In addition, the underwriter may allow, and the selected
dealers may reallow, a concession of up to 0.15% of the
principal amount of the notes to certain other dealers. After
the initial offering, the underwriter may change the public
offering price and any other selling terms. The underwriter may
offer and sell notes through certain of its affiliates. The
offering of the notes by the underwriter is subject to receipt
and acceptance and subject to the underwriters right to
reject any order in whole or in part.
The notes are an issue of securities with no established trading
market. We have been advised by the underwriter that it intends
to make a secondary market for the notes, but it is not
obligated to do so and may discontinue making a secondary market
for the notes at any time without notice. No assurance can be
given as to how liquid any trading market for the notes will be.
In connection with the offering of the notes, the underwriter
may purchase and sell notes in the open market. These
transactions may include short sales, stabilizing transactions
and purchases to cover positions created by short sales. Short
sales involve the sale by the underwriter of a greater principal
amount of notes it is required to purchase in the offering of
the notes. Stabilizing transactions consist of certain bids or
purchases made for the purpose of preventing or retarding a
decline in the market price of the notes while the offering of
the notes is in progress.
These activities by the underwriter may stabilize, maintain or
otherwise affect the market price of the notes. As a result, the
price of the notes may be higher than the price that otherwise
might exist in the open market. If these activities are
commenced, they may be discontinued by the underwriter at any
time without notice. These transactions may be effected in the
over-the-counter
market or otherwise.
Neither we nor the underwriter makes any representation or
prediction as to the direction or magnitude of any effect that
the transactions described above may have on the price of the
notes.
We estimate that we will pay approximately $300,000 for
expenses, excluding underwriting discounts and other fees,
allocable to the offering.
We have agreed to indemnify the underwriter against certain
liabilities, including liabilities under the Securities Act, or
to contribute to payments that the underwriter may be required
to make in respect of any such liabilities.
We have agreed for a period from the date of this prospectus
supplement through and including the business day following the
closing date of this offering, that we will not, without the
prior written consent of the
S-27
underwriter, offer, sell, contract to sell or otherwise dispose
of any debt securities issued or guaranteed by us and having a
tenor of more than one year.
The underwriter and its affiliates have in the past provided,
and may in the future from time to time provide, investment
banking and other financing, banking and commercial services to
us and/or
our affiliates, for which they have in the past received, and
may in the future receive, customary fees and expenses.
The underwriter and its affiliates are full-service financial
institutions engaged in various activities, which may include
securities trading, commercial and investment banking, financial
advisory, investment management, investment research, principal
investment, hedging, financing and brokerage activities.
In the ordinary course of their various business activities, the
underwriter and its affiliates may make or hold a broad array of
investments and actively trade debt and equity securities (or
related derivative securities) and financial instruments
(including bank loans) for their own account and for the
accounts of their customers, and such investment and securities
activities may involve securities and instruments of the issuer.
The underwriter and its affiliates may also make investment
recommendations
and/or
publish or express independent research views in respect of such
securities or instruments and may at any time hold, or recommend
to clients that they acquire, long
and/or short
positions in such securities and instruments.
Selling
restrictions
European
Economic Area
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a Relevant
Member State), the underwriter has represented and agreed that
with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the
Relevant Implementation Date) it has not made and will not make
an offer of notes which are the subject of the offering
contemplated by this prospectus supplement to the public in that
Relevant Member State other than:
(a) to any legal entity which is a qualified investor as
defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has
implemented the relevant provision of the 2010 PD Amending
Directive, 150, natural or legal persons (other than qualified
investors as defined in the Prospectus Directive), as permitted
under the Prospectus Directive, subject to obtaining the prior
consent of the underwriter for any such offer; or
(c) in any other circumstances falling within
Article 3(2) of the Prospectus Directive, provided that no
such offer of notes shall require us or the underwriter to
publish a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an offer of
notes to the public in relation to any notes in any Relevant
Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and
the notes to be offered so as to enable an investor to decide to
purchase or subscribe for the notes, as the same may be varied
in that Member State by any measure implementing the Prospectus
Directive in that Member State, the expression Prospectus
Directive means Directive 2003/71/EC (and amendments thereto,
including the 2010 PD Amending Directive, to the extent
implemented in the Relevant Member State), and includes any
relevant implementing measure in the Relevant Member State and
the expression 2010 PD Amending Directive means Directive
2010/73/EU.
United
Kingdom
The underwriter has represented and agreed that:
(a) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services
and Markets Act 2000, known as the FSMA) received by
it in connection with the issue or sale of the notes in
circumstances in which Section 21(1) of the FSMA does not
apply to us; and
S-28
(b) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the notes in, from or otherwise involving the United
Kingdom.
Hong
Kong
The notes may not be offered or sold by means of any document
other than (i) in circumstances which do not constitute an
offer to the public within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), or (ii) to
professional investors within the meaning of the
Securities and Futures Ordinance (Cap.571, Laws of Hong Kong)
and any rules made thereunder, or (iii) in other
circumstances which do not result in the document being a
prospectus within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), and no advertisement,
invitation or document relating to the notes may be issued or
may be in the possession of any person for the purpose of issue
(in each case whether in Hong Kong or elsewhere), which is
directed at, or the contents of which are likely to be accessed
or read by, the public in Hong Kong (except if permitted to do
so under the laws of Hong Kong) other than with respect to notes
which are or are intended to be disposed of only to persons
outside Hong Kong or only to professional investors
within the meaning of the Securities and Futures Ordinance
(Cap.571, Laws of Hong Kong) and any rules made thereunder.
Japan
The notes have not been and will not be registered under the
Securities and Exchange Law of Japan (the Securities and
Exchange Law) and the underwriter has agreed that it will not
offer or sell any notes, directly or indirectly, in Japan or to,
or for the benefit of, any resident of Japan (which term as used
herein means any person resident in Japan, including any
corporation or other entity organized under the laws of Japan),
or to others for re-offering or resale, directly or indirectly,
in Japan or to a resident of Japan, except pursuant to an
exemption from the registration requirements of, and otherwise
in compliance with, the Securities and Exchange Law and any
other applicable laws, regulations and ministerial guidelines of
Japan.
Singapore
This prospectus supplement and the accompanying prospectus have
not been registered as a prospectus with the Monetary Authority
of Singapore. Accordingly, this prospectus supplement, the
accompanying prospectus and any other document or material in
connection with the offer or sale, or invitation for
subscription or purchase, of the notes may not be circulated or
distributed, nor may the notes be offered or sold, or be made
the subject of an invitation for subscription or purchase,
whether directly or indirectly, to persons in Singapore other
than (i) to an institutional investor under
Section 274 of the Securities and Futures Act,
Chapter 289 of Singapore (the SFA),
(ii) to a relevant person, or any person pursuant to
Section 275(1A), and in accordance with the conditions,
specified in Section 275 of the SFA or (iii) otherwise
pursuant to, and in accordance with the conditions of, any other
applicable provision of the SFA.
Where the notes are subscribed or purchased under
Section 275 by a relevant person which is: (a) a
corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of
whom is an accredited investor; or (b) a trust (where the
trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that
corporation or the beneficiaries rights and interest in
that trust shall not be transferable for six months after that
corporation or that trust has acquired the notes under
Section 275 except: (1) to an institutional investor
under Section 274 of the SFA or to a relevant person, or
any person pursuant to Section 275(1A), and in accordance
with the conditions, specified in Section 275 of the SFA;
(2) where no consideration is given for the transfer; or
(3) by operation of law.
Notice to
Canadian residents
Resale
Restrictions
The distribution of the notes in Canada is being made only in
the provinces of Ontario, Quebec, Alberta, British Columbia and
Manitoba on a private placement basis exempt from the
requirement that we prepare and file a
S-29
prospectus with the securities regulatory authorities in each
province where trades of the notes are made. Any resale of the
notes in Canada must be made under applicable securities laws
which may vary depending on the relevant jurisdiction, and which
may require resales to be made under available statutory
exemptions or under a discretionary exemption granted by the
applicable Canadian securities regulatory authority. Purchasers
are advised to seek legal advice prior to any resale of the
notes.
Representations
of Purchasers
By purchasing the notes in Canada and accepting delivery of a
purchase confirmation, a purchaser is representing to us and the
dealer from whom the purchase confirmation is received that:
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the purchaser is entitled under applicable provincial securities
laws to purchase the notes without the benefit of a prospectus
qualified under those securities laws as it is an
accredited investor as defined under National
Instrument
45-106
Prospectus and Registration Exemptions,
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the purchaser is a Canadian permitted client as
defined in National Instrument
31-103
Registration Requirements and Exemptions, or as otherwise
interpreted and applied by the Canadian Securities
Administrators,
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where required by law, the purchaser is purchasing as principal
and not as agent,
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the purchaser has reviewed the text above under Resale
Restrictions, and
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the purchaser acknowledges and consents to the provision of
specified information concerning the purchase of the notes to
the regulatory authority that by law is entitled to collect the
information, including certain personal information. For
purchasers in Ontario, questions about such indirect collection
of personal information should be directed to Administrative
Support Clerk, Ontario Securities Commission, Suite 1903,
Box 55, 20 Queen Street West, Toronto, Ontario M5H 3S8 or on
(416) 593-3684.
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Rights of
Action Ontario Purchasers
Under Ontario securities legislation, certain purchasers who
purchase a security offered by this prospectus supplement during
the period of distribution will have a statutory right of action
for damages, or while still the owner of the notes, for
rescission against us in the event that this prospectus
supplement contains a misrepresentation without regard to
whether the purchaser relied on the misrepresentation. The right
of action for damages is exercisable not later than the earlier
of 180 days from the date the purchaser first had knowledge
of the facts giving rise to the cause of action and three years
from the date on which payment is made for the notes. The right
of action for rescission is exercisable not later than
180 days from the date on which payment is made for the
notes. If a purchaser elects to exercise the right of action for
rescission, the purchaser will have no right of action for
damages against us. In no case will the amount recoverable in
any action exceed the price at which the notes were offered to
the purchaser and if the purchaser is shown to have purchased
the securities with knowledge of the misrepresentation, we will
have no liability. In the case of an action for damages, we will
not be liable for all or any portion of the damages that are
proven to not represent the depreciation in value of the notes
as a result of the misrepresentation relied upon. These rights
are in addition to, and without derogation from, any other
rights or remedies available at law to an Ontario purchaser. The
foregoing is a summary of the rights available to an Ontario
purchaser. Ontario purchasers should refer to the complete text
of the relevant statutory provisions.
Enforcement
of Legal Rights
All of our directors and officers as well as the experts named
herein may be located outside of Canada and, as a result, it may
not be possible for Canadian purchasers to effect service of
process within Canada upon us or those persons. All or a
substantial portion of our assets and the assets of those
persons may be located outside of Canada and, as a result. it
may not be possible to satisfy a judgment against us or those
persons in Canada or to enforce a judgment obtained in Canadian
courts against us or those persons outside of Canada.
S-30
Taxation
and Eligibility for Investment
Canadian purchasers of the notes should consult their own legal
and tax advisors with respect to the tax consequences of an
investment in the notes in their particular circumstances and
about the eligibility of the notes for investment by the
purchaser under relevant Canadian legislation.
S-31
Validity
of notes
The validity of the notes offered hereby will be passed upon for
us by Katten Muchin Rosenman LLP, Chicago, Illinois, and for the
underwriter by Sullivan & Cromwell LLP, New York, New
York. Sullivan & Cromwell LLP will rely on the opinion of
Kristi A. Hayek, Esq., Senior Vice President and Deputy General
Counsel of Associated Banc-Corp, as to matters of Wisconsin law.
Experts
The consolidated financial statements of Associated Banc-Corp as
of December 31, 2010 and 2009, and for each of the years in
the three-year period ended December 31, 2010 and
managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2010,
which are included in our Annual Report on
Form 10-K,
have been incorporated by reference in this prospectus
supplement and in the registration statement in reliance upon
the reports of KPMG LLP, an independent registered public
accounting firm, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
S-32
PROSPECTUS
Associated Banc-Corp
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
Units
ASBC Capital II
ASBC Capital III
Capital Securities
Fully And Unconditionally
Guaranteed
By Associated
Banc-Corp
Associated Banc-Corp, ASBC Capital II, ASBC Capital III or
the selling security holders of Associated Banc-Corp may offer
from time to time to sell, in one or more series, the securities
described in this prospectus. The registration statement that
contains this prospectus also registers the resale of shares of
preferred stock of Associated Banc-Corp, warrants of Associated
Banc-Corp and shares of common stock of Associated Banc-Corp to
be issued upon the exercise of the warrants, which have been
sold to the United States Department of the Treasury
pursuant to the Capital Purchase Program under the Troubled
Asset Relief Program.
These securities may be offered or sold to or through one or
more underwriters, dealers and agents, or directly to
purchasers, on a continued or delayed basis.
The principal executive offices of Associated Banc-Corp, ASBC
Capital II and ASBC Capital III are located at 1200
Hansen Road, Green Bay, Wisconsin 54304, and the telephone
number is
(920) 491-7000.
We or our selling security holders will provide the specific
terms of these securities, and the manner in which they are
being offered, in supplements to this prospectus. These
securities cannot be sold unless this prospectus is accompanied
by a prospectus supplement. You should read this prospectus and
the applicable prospectus supplement carefully before you invest.
The shares of the common stock of Associated Banc-Corp are
listed on the Nasdaq Global Select Market under the symbol
ASBC. On December 16, 2008, the closing price
of Associated Banc-Corps common stock was $20.00 per share.
Purchasers of securities should read and consider the
information set forth in Risk Factors on page 3
of this prospectus and in the accompanying prospectus
supplement, if any.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
THE SECURITIES WILL BE EQUITY SECURITIES IN OR UNSECURED
OBLIGATIONS OF ASSOCIATED BANC-CORP, ASBC CAPITAL II OR ASBC
CAPITAL III AND WILL NOT BE SAVINGS ACCOUNTS OR DEPOSITS IN OUR
SUBSIDIARY BANK, WILL NOT BE GUARANTEED BY OUR SUBSIDIARY BANK
AND, UNLESS SPECIFIED IN A PROSPECTUS SUPPLEMENT, WILL NOT BE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENT AGENCY.
This prospectus is dated December 17, 2008.
Table of
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we and
the trusts filed with the Securities and Exchange Commission
(SEC) using a shelf registration
process. Under this shelf registration process, we and the
trusts may sell any combination of the securities described in
this prospectus in one or more offerings.
This prospectus provides you with a general description of the
securities we and the trusts may offer. Each time we sell
securities, we or the trusts will provide a prospectus
supplement that will contain specific information about the
terms of that offering. Such prospectus supplement may also add,
update or change information contained in this prospectus. If
there is any inconsistency between the information in the
prospectus and the applicable prospectus supplement, you should
rely on the information in the prospectus supplement. You should
read this prospectus and the applicable prospectus supplement
together with the additional information provided under the
heading Where You Can Find More Information.
You should rely only on the information incorporated by
reference or provided in this prospectus. We and the trusts have
not authorized anyone to provide you with different information.
We and the trusts are not making an offer to sell or soliciting
an offer to buy these securities in any jurisdiction in which
the offer or solicitation is not authorized or in which the
person making the offer or solicitation is not qualified to do
so or to anyone to whom it is unlawful to make the offer or
solicitation. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the
front of the document.
Any of the securities described in this prospectus and in a
prospectus supplement may be convertible or exchangeable into
other securities that are described in this prospectus or will
be described in a prospectus supplement or may be issued
separately, together or as part of a unit consisting of two or
more securities, which may or may not be separate from one
another. These securities may include new or hybrid securities
developed in the future that combine features of any of the
securities described in this prospectus.
The registration statement that contains this prospectus also
registers the resale of shares of our preferred stock, our
warrants and our shares of common stock to be issued upon the
exercise of our warrants, which have been sold to the United
States Department of the Treasury pursuant to the Capital
Purchase Program under the Troubled Asset Relief Program.
The registration statement that contains this prospectus,
including the exhibits to the registration statement, contains
additional information about us and the securities offered under
this prospectus. You can find the registration statement at the
SECs website or at the SEC office mentioned under the
heading Where You Can Find More Information.
Unless the context otherwise indicates, the terms
us, we and the Company refer
to Associated Banc-Corp. Unless the context otherwise indicates,
the term trusts refers to ASBC Capital II and
ASBC Capital III.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any
such reports, statements or other information at the SECs
public reference room at the following location:
Public Reference Room
100 F Street, N.E., Room 1580
Washington, D.C. 20549
1-800-732-0330
You may also obtain copies of this information by mail from the
Public Reference Section of the SEC, 100 F Street,
N.E., Room 1580, Washington, D.C. 20549, at prescribed
rates.
Our SEC filings are also available to the public from commercial
document retrieval services and at the world wide web site
maintained by the SEC at
http://www.sec.gov.
1
Separate financial statements of the trusts have not been
provided as they would not be material to holders of the capital
securities because the trusts have no operations.
This prospectus is a part of a Registration Statement on
Form S-3.
This prospectus does not contain all of the information you can
find in the registration statement or the exhibits to the
registration statement. For further information about us and the
securities, we refer you to the registration statement and the
exhibits and schedules filed as a part of the registration
statement.
The SEC allows us to incorporate by reference
information into this prospectus. This means that we can
disclose important information by referring you to another
document filed separately with the SEC. The information that we
incorporate by reference is deemed to be a part of this
prospectus, except for any information that is superseded by
information that is included directly in this prospectus. This
prospectus incorporates by reference the documents listed below
that we have previously filed with the SEC. The documents
contain important information about us and our financial
condition.
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Our SEC Filings
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(File Nos. 0-5519 and 001-31343)
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Period or Filing Date
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Annual Report on
Form 10-K
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Year ended December 31, 2007
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Quarterly Reports on
Form 10-Q
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Quarter ended March 31, 2008, Quarter ended June 30, 2008, and
Quarter ended September 30, 2008
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Current Reports on
Form 8-K
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Filed on January 23, 2008, April 23, 2008, April 24, 2008,
September 9, 2008, October 23, 2008, October 28, 2008, November
6, 2008 and November 21, 2008
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We also incorporate by reference additional documents that we
will file with the SEC pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 (the
Exchange Act) after the date of this document. Those
documents include periodic reports such as Annual Reports on
Form 10-K,
Quarterly Reports on
Form 10-Q
and Current Reports on
Form 8-K,
as well as proxy statements.
Documents which we incorporate by reference are available from
us without charge, excluding all exhibits, unless we have
specifically incorporated by reference an exhibit in this
prospectus. You may also obtain documents incorporated by
reference in this prospectus by requesting them in writing or by
telephone from us at the following address:
Associated
Banc-Corp
Attention: Corporate Secretary
1200 Hansen Road
Green Bay, Wisconsin 54304
(920) 491-7000
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RISK
FACTORS
Investing in the securities involves risk. Please see the
Risk Factors section in our most recent Annual
Report on
Form 10-K,
along with any disclosure related to the risk factors contained
in our subsequent Quarterly Reports on
Form 10-Q,
which are incorporated by reference in this prospectus, as
updated by our future filings with the SEC. Before making an
investment decision, you should carefully consider these risks
as well as other information contained or incorporated by
reference in this prospectus. The risks and uncertainties not
presently known to us or that we currently deem immaterial may
also impair our business operations, our financial results and
the value of the securities. The prospectus supplement
applicable to each type or series of securities we offer may
contain a discussion of additional risks applicable to an
investment in us and the particular type of securities we are
offering under that prospectus supplement.
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents that are incorporated by
reference herein may contain forward-looking statements within
the meaning of the federal securities laws and the Private
Securities Litigation Reform Act of 1995. You can identify
forward-looking statements by words such as may,
hope, will, should,
expect, plan, anticipate,
intend, believe, estimate,
predict, potential,
continue, could, future or
the negative of those terms or other words of similar meaning.
You should read statements that contain these words carefully
because they discuss our future expectations or state other
forward-looking information. We believe that it is
important to communicate our future expectations to our
investors. However, there may be events in the future that we
are not able to accurately predict or control and our actual
results may differ materially from the expectations we describe
in our forward-looking statements.
Before you invest in our securities, you should be aware that
the occurrence of the events discussed under the caption
Risk Factors in our 2007 Annual Report on
Form 10-K,
discussed in the disclosure related to the risk factors
contained in our subsequent Quarterly Reports on
Form 10-Q,
and discussed elsewhere in this prospectus and in the
information incorporated by reference herein, could have a
material and adverse effect on our business, results of
operations and financial condition. These factors, many of which
are beyond our control, include the following:
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operating, legal and regulatory risks;
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economic, political, and competitive forces affecting our
banking, securities, asset management, insurance, and credit
services businesses;
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integration risks related to acquisitions;
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impact on our net interest income from changes in monetary
policy and general economic conditions; and
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the risk that our analyses of these risks and forces could be
incorrect
and/or that
the strategies developed to address them could be unsuccessful.
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The forward-looking statements contained or incorporated by
reference in this prospectus relate only to circumstances as of
the date on which the statements are made. We undertake no
obligation to update or revise any forward-looking statements,
whether as a result of new information, future events or
otherwise.
ASSOCIATED
BANC-CORP
General
We are a bank holding company registered pursuant to the Bank
Holding Company Act of 1956, as amended. We were incorporated in
Wisconsin in 1964 and were inactive until 1969 when we received
permission from the Board of Governors of the Federal Reserve
System(Federal Reserve Board) to acquire three
banks. At September 30, 2008, we owned one nationally
chartered commercial bank headquartered in Wisconsin, serving
local communities predominantly within our three-state footprint
(Wisconsin, Illinois and
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Minnesota) and, measured by total assets held at
September 30, 2008, we were the second-largest commercial
bank holding company headquartered in Wisconsin. At
September 30, 2008, we owned one nationally chartered trust
company headquartered in Wisconsin, serving clients throughout
our three-state footprint. At September 30, 2008, we also
owned 28 limited-purpose banking and nonbanking subsidiaries
located in Arizona, California, Illinois, Minnesota, Nevada,
Vermont and Wisconsin that are closely related or incidental to
the business of banking.
We provide our subsidiaries with leadership, as well as
financial and managerial assistance in areas such as corporate
development, auditing, marketing, legal/compliance, human
resources management, risk management, facilities management,
security, purchasing, credit administration, asset and liability
management and other treasury-related activities, budgeting,
accounting and other finance support.
Responsibility for the management of the subsidiaries remains
with their respective boards of directors and officers. Services
rendered to the subsidiaries by us are intended to assist the
management of these subsidiaries to expand the scope of services
offered by them. At September 30, 2008, our bank
subsidiary, Associated Bank, National Association, provided
services through approximately 300 locations in approximately
160 communities.
Services
Through our banking subsidiary and various nonbanking
subsidiaries, we provide a broad array of banking and nonbanking
products and services to individuals and businesses in the
communities we serve. We organize our business into two
reportable segments: Banking and Wealth Management. Our banking
and wealth management activities are conducted predominantly in
Wisconsin, Minnesota and Illinois, and are primarily delivered
through branch facilities in this tri-state area, as well as
supplemented through loan production offices, supermarket
branches, a customer service call center and
24-hour
phone-banking services, an interstate Automated Teller Machine
(ATM) network, and internet banking services. The banking
segment represented approximately 90%, 90%, 90% and 91% of total
revenues for the nine months ended September 30, 2008 and
the years ended December 31, 2007, 2006 and 2005,
respectively. Our profitability is significantly dependent on
the net interest income, noninterest income, the level of the
provision for loan losses, noninterest expense, and related
income taxes of our banking segment.
Banking consists of lending and deposit gathering (as well as
other banking-related products and services) to businesses,
governments and consumers, and the support to deliver, fund and
manage those banking services. We offer a variety of loan and
deposit products to retail customers, including but not limited
to: home equity loans and lines of credit, residential mortgage
loans and mortgage refinancing, education loans, personal and
installment loans, checking, savings, money market deposit
accounts, IRA accounts, certificates of deposit and safe deposit
boxes. As part of our management of originating and servicing
residential mortgage loans, nearly all of our long-term,
fixed-rate residential real estate mortgage loans are sold in
the secondary market with servicing rights retained. Loans,
deposits and related banking services to businesses (including
small and larger businesses, governments/municipalities, metro
or niche markets, and companies with specialized lending needs
such as floor plan lending or asset-based lending) primarily
include, but are not limited to: business checking and other
business deposit products, business loans, lines of credit,
commercial real estate financing, construction loans, letters of
credit, revolving credit arrangements, and to a lesser degree
business credit cards and equipment and machinery leases. To
further support business customers and correspondent financial
institutions, we provide safe deposit and night depository
services, cash management, and international banking, as well as
check clearing, safekeeping, and other banking-based services.
The wealth management segment provides products and a variety of
fiduciary, investment management, advisory and corporate agency
services to assist customers in building, investing or
protecting their wealth. Customers include individuals,
corporations, small businesses, charitable trusts, endowments,
foundations and institutional investors. The wealth management
segment represented approximately 10%, 10%, 10% and 9% of total
revenues for the nine months ended September 30, 2008 and
the years ended December 31, 2007, 2006 and 2005,
respectively. The wealth management segment is comprised of a
full range of personal and business insurance products and
services (including life, property, casualty, credit and
mortgage insurance, fixed
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annuities, and employee group benefits consulting and
administration); full-service investment brokerage, variable
annuities, and discount and on-line brokerage; and trust/asset
management, investment management, administration of pension,
profit-sharing and other employee benefit plans, personal
trusts, and estate planning.
We are not dependent upon a single or a few customers, the loss
of which would have a material adverse effect on us. No material
portion of our business is seasonal.
Our principal executive office is located at 1200 Hansen Road,
Green Bay, Wisconsin 54304. Our phone number is
(920) 491-7000.
CERTAIN
REGULATORY CONSIDERATIONS
General
As a bank holding company under the Bank Holding Company Act, we
and our business activities are subject to the supervision,
examination and regulation of the Federal Reserve Board.
For a discussion of the material elements of the regulatory
framework applicable to bank holding companies and their
subsidiaries, and specific information relevant to us, please
refer to our Annual Report on
Form 10-K
for the year ended December 31, 2007, which is incorporated
by reference in this prospectus, and any subsequent reports we
file with the SEC that are so incorporated. This regulatory
framework is intended primarily for the protection of depositors
and other clients of banking subsidiaries, the Deposit Insurance
Fund of the Federal Deposit Insurance Corporation
(FDIC) and the banking system as a whole, not for
the protection of investors.
We are a member of the Federal Reserve System. Our subsidiary
bank, Associated Bank, National Association, is subject to
regulation by the Office of the Comptroller of the Currency, and
its deposits are insured by the FDIC.
Restrictions
on Payment of Dividends
We are a legal entity separate and distinct from our
subsidiaries. Substantially all of our operations are conducted
through our banking subsidiary. As a result, our ability to meet
our obligations and pay dividends on our common stock will
depend primarily on the ability of this subsidiary to pay
dividends in amounts sufficient to service these obligations.
Provisions of federal banking laws restrict the amount of
dividends that our banking subsidiary may pay to us. Under
applicable federal laws, no dividends may be paid in an amount
greater than the net or undivided profits then on hand, subject
to other applicable provisions of law. In addition, prior
approval from our federal banking regulator is required if
dividends declared by our banking subsidiary in any calendar
year will exceed the subsidiarys net profits for that
year, combined with its retained net profits for the preceding
two years. Our ability to pay dividends may be further
restricted as a result of statutes applicable to the particular
banking organization or regulatory policies and guidelines
relating to dividend payments and capital adequacy. For example,
we may not pay a dividend in an amount greater than our
undivided profits without regulatory and shareholder approval.
We are also prohibited under federal law from paying any
dividend that would cause us to become undercapitalized. In
addition, the federal regulatory agencies are authorized to
prohibit a bank or bank holding company from engaging in an
unsafe or unsound banking practice. The payment of dividends
could, depending on the financial condition of a particular
banking organization, be deemed to constitute an unsafe or
unsound practice.
We are also subject to certain restrictions on the payment of
dividends on our common stock pursuant to our participation in
the Capital Purchase Program under the Troubled Asset Relief
Program.
The payment of dividends by each of our nonbank subsidiaries is
limited by the laws of the jurisdiction in which each is
incorporated. Particular subsidiaries may also be subject to
regulatory limitations on the payment of dividends or
regulations that have the effect of limiting dividend payments.
5
The Federal Reserve Board has issued a policy statement with
regard to the payment of cash dividends by bank holding
companies. The policy statement provides that, as a matter of
prudent banking, a bank holding company should not maintain a
rate of cash dividends unless its net income available to common
stockholders has been sufficient to fully fund the dividends,
and the prospective rate of earnings retention appears to be
consistent with the holding companys capital needs, asset
quality, and overall financial condition. Accordingly, a bank
holding company should not pay cash dividends that exceed its
net income or can only be funded in ways that weaken the bank
holding companys financial health, such as by borrowing.
ABOUT THE
TRUSTS
We created a number of trusts under Delaware law under separate
trust agreements established for each trust. A trust is a
fiduciary relationship where one person, known as the property
trustee, holds some property for the benefit of another person,
in this case, the purchasers of the securities. For the
securities being sold, each of the trustees and we will enter
into amended and restated trust agreements that will be
substantially in the form filed as an exhibit to this
registration statement, which will state the terms and
conditions for each trust to issue and sell the specific capital
securities and common securities.
The trusts exist solely to:
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issue and sell capital securities and common securities;
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use the gross proceeds from the sale of the capital securities
and common securities to purchase a corresponding series of our
junior subordinated debt securities;
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maintain their status as grantor trusts for federal income tax
purposes; and
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engage in other activities that are necessary or incidental to
these purposes.
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We will purchase all of the common securities of each trust. The
common securities will represent an aggregate liquidation amount
equal to at least 3% of each trusts total capitalization.
The capital securities will represent the remaining 97% of each
trusts total capitalization. The common securities will
have terms substantially identical to, and will normally rank
equal in priority of payment with, the capital securities. If we
default on the corresponding junior subordinated debt
securities, then distributions on the common securities will be
subordinate to the preferred securities in priority of payment.
For each trust, as the direct or indirect holder of the common
securities, we have appointed four trustees to conduct each
trusts business and affairs. The two administrative
trustees will be individuals who are our employees. The third
trustee, as property trustee, will hold title to the junior
subordinated debt securities for the benefit of the holders of
the capital securities and will have the power to exercise all
the rights and powers of a registered holder of the junior
subordinated debt securities. The fourth trustee, as Delaware
trustee, maintains its principal place of business in Delaware
and meets the requirements of Delaware law for Delaware
statutory trusts. As holder of the common securities we (except
in some circumstances) have the power to:
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appoint the trustees;
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replace or remove the trustees; and
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increase or decrease the number of trustees.
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This means that if you are dissatisfied with a trustee you will
not be able to remove the trustee without our consent, other
than following the occurrence of an event of default. Similarly,
if we are dissatisfied with a trustee we can remove the trustee
(subject to the terms of the applicable trust agreement) even if
you are satisfied with the trustee.
The capital securities will be fully and unconditionally
guaranteed by us as described under Description of the
Guarantees.
The principal executive office of each trust is
c/o Associated
Banc-Corp, 1200 Hansen Road, Green Bay, Wisconsin 54304, and its
telephone number is
(920) 491-7000.
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USE OF
PROCEEDS
Unless we indicate a different use in an accompanying prospectus
supplement and subject to restrictions pursuant to the Capital
Purchase Program under the Troubled Asset Relief Program, the
net proceeds from our sale of the offered securities will be
added to our general corporate funds and may be used for:
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debt reduction or debt refinancing;
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investments in or advances to subsidiaries;
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acquisitions of bank and nonbank subsidiaries;
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repurchase of shares of our common stock or other
securities; and
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other general corporate purposes.
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Each trust will use all of the proceeds from the sale of the
capital securities to purchase our junior subordinated debt
securities.
Unless otherwise specified in the applicable prospectus
supplement and subject to restrictions pursuant to the Capital
Purchase Program under the Troubled Asset Relief Program, we
intend to use the net proceeds we receive from the sale of our
junior subordinated debt securities for general corporate
purposes.
Until the net proceeds have been used, they may be temporarily
invested in securities or held in deposits of our subsidiary
bank.
The registration statement that contains this prospectus also
registers the resale of shares of our preferred stock, our
warrants and shares of our common stock to be issued upon the
exercise of our warrants, which have been sold to the United
States Department of the Treasury pursuant to the Capital
Purchase Program under the Troubled Asset Relief Program. We
will not receive any proceeds from the sale of such preferred
stock, warrants and shares of common stock to be issued upon the
exercise of the warrants offered for sale in this prospectus by
a selling security holder, other than the exercise price of the
warrants.
The applicable prospectus supplement will provide more details
on the use of proceeds of any specific offering.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table shows our ratio of consolidated earnings to
fixed charges for the nine months ended September 30, 2008
and 2007 and each of our last five years:
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Nine Months Ended
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September 30,
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Year Ended December 31,
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2008
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2007
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2007
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2006
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2005
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2004
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2003
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1.59x
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1.68x
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1.66x
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1.73x
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2.10x
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2.70x
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2.47x
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For the purpose of computing the above ratio,
earnings consists of income before income taxes and
fixed charges. Fixed charges includes all interest
expense on debt and deposits (including the amortization of
premiums and discounts) and the portion of rents representative
of the interest factor.
DESCRIPTION
OF SENIOR AND SUBORDINATED DEBT SECURITIES
General
We have described below certain general terms that may apply to
the debt securities issued pursuant to this prospectus. We will
describe the particular terms of any such debt securities we
offer to you in the prospectus supplement relating to those debt
securities.
We will issue the senior debt securities under a senior
indenture between us and The Bank of New York Mellon
Trust Company, N.A., as trustee, and we will issue the
subordinated debt securities under a
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subordinated indenture between us and The Bank of New York
Mellon Trust Company, N.A., as trustee. The following
summary of certain provisions of the indentures for the senior
debt securities and the subordinated debt securities is not
complete. You should refer to the indentures, copies of which
are filed as exhibits to the registration statement of which
this prospectus is a part.
Neither of the indentures limits the amount of senior and
subordinated debt securities that we may issue. We also have the
right to reopen a previous issue of a series of debt
securities by issuing additional debt securities of such series.
The senior debt securities will be unsecured and will have the
same rank as all of our other unsecured and unsubordinated debt.
The subordinated debt securities will be unsecured and will be
subordinated and junior to all senior indebtedness
(as defined below under Subordinated Debt
Securities Subordination). In addition, under
certain circumstances relating to our dissolution,
winding-up,
liquidation or reorganization, the subordinated debt securities
will be junior to all other financial obligations
(as defined below under Subordinated Debt
Securities Subordination).
We are a bank holding company that conducts substantially all of
our operations through subsidiaries. As a result, claims of the
holders of the debt securities will be subordinated in right of
payment to claims of creditors of our subsidiaries, except to
the extent that Associated Banc-Corp may be recognized, and
receive payment, as a creditor of those subsidiaries. Claims of
our subsidiaries creditors, other than Associated
Banc-Corp, include substantial amounts of long-term debt,
deposit liabilities, federal funds purchased, securities sold
under repurchase agreements, commercial paper and other
short-term borrowings.
We may issue the debt securities in one or more separate series
of senior debt securities
and/or
subordinated debt securities. We will specify in the prospectus
supplement relating to a particular series of debt securities
being offered the particular amounts, prices, and terms of those
debt securities. These terms may include:
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the title and type of the senior and subordinated debt
securities;
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any limit on the aggregate principal amount or aggregate initial
offering price of the senior and subordinated debt securities;
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the purchase price of the senior and subordinated debt
securities;
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the dates on which the principal of the senior and subordinated
debt securities will be payable;
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the interest rates of the senior and subordinated debt
securities, or the method for determining those rates, and the
interest payment dates for the senior and subordinated debt
securities;
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the places where payments may be made on the senior and
subordinated debt securities;
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any mandatory or optional redemption provisions applicable to
the senior and subordinated debt securities;
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any sinking fund or similar provisions applicable to the senior
and subordinated debt securities;
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the authorized denominations of the senior and subordinated debt
securities, if other than $1,000 and integral multiples of
$1,000;
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if denominated in a currency other than U.S. dollars, the
currency or currencies, including the euro or other composite
currencies, in which payments on the senior and subordinated
debt securities will be payable (which currencies may be
different for principal, premium, and interest payments);
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any conversion or exchange provisions applicable to the senior
and subordinated debt securities;
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any defaults and events of default applicable to the senior and
subordinated debt securities (if not described in this
prospectus);
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whether the senior and subordinated debt securities will be
issuable only in global form, which is known as a global
security, and, if so, the name of the depositary for the global
security and the circumstances under which the global security
may be registered for transfer or exchange in the name of the
person other than the depositary; and
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any other specific terms of the senior and subordinated debt
securities.
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As described in an applicable prospectus supplement, we may
issue senior debt securities which are guaranteed under the
Federal Deposit Insurance Corporations Temporary Liquidity
Guarantee Program (TLGP). The details of the TLGP
are provided in the FDICs regulations, 12 CFR
Part 370, and on the FDICs website,
www.fdic.gov/tlgp, which internet address is included as
an inactive textual reference only. The information on the
FDICs website shall not be deemed to be incorporated by
reference in this prospectus. The expiration date of the
FDICs guarantee is the earlier of the maturity date of the
specified senior debt securities and June 30, 2012.
Where appropriate, the applicable prospectus supplement will
describe the U.S. federal income tax considerations
relevant to the debt securities.
Some of the debt securities may be issued as original issue
discount securities. Original issue discount securities bear no
interest or bear interest at below-market rates and will be sold
at a discount below their stated principal amount. Any
applicable prospectus supplement will also contain any special
U.S. federal income tax or other information relating to
original issue discount securities.
Persons considering the purchase, ownership, or disposition of
original issue discount debt securities or other kinds of debt
securities, including debt securities linked to an index or
payable in currencies other than U.S. dollars, should
consult their own tax advisors concerning the U.S. federal
income tax consequences to them from the purchase, ownership, or
disposition of those securities in light of their particular
situations, as well as any consequences arising under the laws
of any other taxing jurisdiction.
Unless otherwise specified in the applicable prospectus
supplement, we will issue the senior and subordinated debt
securities only in fully registered form without coupons. You
will not be required to pay a service charge for any transfer or
exchange of senior and subordinated debt securities, but we may
require payment of any taxes or other governmental charges.
Unless otherwise specified in the applicable prospectus
supplement, we will pay principal, premium, if any, and
interest, if any, on the senior and subordinated debt securities
at the corporate trust office of the trustee. You may also make
transfers or exchanges of senior and subordinated debt
securities at that location. We also have the right to pay
interest on any senior and subordinated debt securities by check
mailed to the registered holders of such debt securities at
their registered addresses. In connection with any payment on
debt securities, we may require the holder to certify
information to Associated Banc-Corp. In the absence of that
certification, we may rely on any legal presumption to enable us
to determine our responsibilities, if any, to deduct or withhold
taxes, assessments, or governmental charges from the payment.
Neither of the indentures limits our ability to enter into a
highly leveraged transaction or provides you with any special
protection in the event of such a transaction. In addition,
neither of the indentures provides special protection in the
event of a sudden and dramatic decline in our credit quality
resulting from a takeover, recapitalization, or similar
restructuring of Associated Banc-Corp.
The senior and subordinated debt securities may be offered
together with warrants to purchase additional senior and
subordinated debt securities, warrants to purchase shares of
common stock or warrants to purchase shares of preferred stock.
We may also issue debt securities exchangeable for or
convertible into other series of our senior and subordinated
debt securities. The applicable prospectus supplement will
describe the specific terms of any of those warrants or
exchangeable or convertible securities. It will also describe
the specific terms of the debt securities issuable upon the
exercise, exchange, or conversion of those securities. See
Description of Warrants below.
Senior
Debt Securities
The senior debt securities will be direct, unsecured general
obligations of Associated Banc-Corp, will constitute senior
indebtedness of Associated Banc-Corp, and will have the same
rank as our other senior indebtedness. For a definition of
senior indebtedness, see Subordinated Debt
Securities Subordination below.
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Limitation on Disposition of Stock of Principal Subsidiary
Bank. The senior indenture contains a covenant by
us that, so long as any of the senior debt securities are
outstanding, neither we nor any of our wholly-owned subsidiaries
will dispose of any shares of voting stock of our principal
subsidiary bank, or any securities convertible into, or options,
warrants, or rights to purchase, shares of voting stock of our
principal subsidiary bank, except to Associated Banc-Corp or
another of our wholly-owned subsidiaries. In addition, the
covenant provides that neither we nor any of our wholly-owned
subsidiaries will permit our principal subsidiary bank to issue
any shares of its voting stock (other than directors
qualifying shares), or securities convertible into, or options,
warrants, or rights to purchase, shares of its voting stock.
The above covenant is subject to our rights in connection with a
consolidation or merger of Associated Banc-Corp with or into
another person or a sale of our assets. The covenant also will
not apply if:
(1) (a) the disposition in question is made for fair
market value, as determined by the board of directors of
Associated Banc-Corp; and (b) after giving effect to the
disposition, we and any one or more of our wholly-owned
subsidiaries will collectively own at least 80% of the issued
and outstanding voting stock of the principal subsidiary bank in
question or any successor to that principal subsidiary bank,
free and clear of any security interest; or
(2) the disposition in question is made in compliance with
an order or direction of a court or regulatory authority of
competent jurisdiction.
The above covenant also does not restrict our principal bank
subsidiary from being consolidated with or merged into another
domestic banking corporation, if after the merger or
consolidation, (A) Associated Banc-Corp, or its successor,
and any one or more of our wholly-owned subsidiaries own at
least 80% of the voting stock of the resulting bank, and
(B) no event of default, and no event which, after notice
or lapse of time or both, would become an event of default under
the senior indenture shall have happened and be continuing.
The senior indenture defines the term principal subsidiary
bank to mean any of our subsidiaries which is a commercial
bank and which has total assets equal to 30 percent or more
of the total consolidated assets of Associated Banc-Corp as of
the date of our most recent audited consolidated financial
statements. At present, Associated Bank, National Association is
our sole subsidiary bank which constitutes a principal
subsidiary bank under this definition. As used above,
voting stock means a class of stock having general
voting power under ordinary circumstances irrespective of the
happening of a contingency. The above covenant would not prevent
our principal subsidiary bank from engaging in a sale of assets
to the extent otherwise permitted by the senior indenture.
Events of Default. The senior indenture
defines an event of default with respect to any series of senior
debt securities as any one of the following events:
(1) default in the payment of interest on any senior debt
security of that series and the continuance of that default for
30 days;
(2) default in the payment of principal of, or premium, if
any, on, any senior debt security of that series at maturity;
(3) default in the deposit of any sinking fund payment
applicable to any senior debt security of that series and the
continuance of that default for 5 days;
(4) failure by us for 60 days after notice to perform
any of the other covenants or warranties in the senior indenture
applicable to that series;
(5) specified events of bankruptcy, insolvency, or
reorganization of Associated Banc-Corp; and
(6) any other event of default specified with respect to
senior debt securities of that series.
If any event of default with respect to senior debt securities
of any series occurs and is continuing, either the trustee or
the holders of not less than 25% in principal amount of the
outstanding senior debt securities of that series may declare
the principal amount (or, if the senior debt securities of that
series are original issue discount senior debt securities, a
specified portion of the principal amount) of all senior debt
securities of that series to be due and payable immediately. No
such declaration is required upon specified events of
bankruptcy,
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insolvency or reorganization. Subject to certain conditions, the
holders of a majority in principal amount of the outstanding
senior debt securities of that series may annul the declaration.
We will describe in the applicable prospectus supplement any
particular provisions relating to the acceleration of the
maturity of a portion of the principal amount of original issue
discount senior debt securities upon an event of default.
Subject to the duty to act with the required standard of care
during a default, the trustee is not obligated to exercise any
of its rights or powers under the senior indenture at the
request or direction of any of the holders of senior debt
securities, unless the holders have offered to the trustee
security or indemnity reasonably satisfactory to the trustee.
The senior indenture provides that the holders of a majority in
principal amount of outstanding senior debt securities of any
series may direct the time, method, and place of conducting any
proceeding for any remedy available to the trustee for that
series, or exercising any trust or other power conferred on the
trustee. However, the trustee may decline to act if the
direction is contrary to law or the senior indenture.
The senior indenture includes a covenant requiring us to file
annually with the trustee a certificate of no default or
specifying any default that exists.
Defeasance and Covenant Defeasance. The senior
indenture contains a provision that, if made applicable to any
series of senior debt securities, permits us to elect:
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defeasance, which would discharge us from all of our obligations
(subject to limited exceptions) with respect to any senior debt
securities of that series then outstanding, and/or
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covenant defeasance, which would release us from our obligations
under specified covenants and the consequences of the occurrence
of an event of default resulting from a breach of these
covenants.
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To make either of the above elections, we must deposit in trust
with the trustee money
and/or
U.S. government obligations (as defined below) or, with
respect to senior debt securities denominated in a foreign
currency, foreign government obligations (as defined below)
which, through the payment of principal and interest in
accordance with their terms, will provide sufficient money,
without reinvestment, to repay in full those senior debt
securities.
As used in the senior indenture, U.S. government
obligations are:
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direct obligations of the U.S. or of an agency or
instrumentality of the U.S., in either case that is guaranteed
as a full faith and credit obligation of the U.S. and that
is not redeemable by the issuer; and
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certain depositary receipts with respect to an obligation
referred to in clause immediately above.
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As used in the senior indenture, foreign government
obligations are direct obligations of a foreign government
or governments or of an agency or instrumentality of such
foreign government or governments, in either case that is
guaranteed as a full faith and credit obligation of such foreign
government or governments and that is not redeemable by the
issuer.
As a condition to defeasance or covenant defeasance, we must
deliver to the trustee an opinion of counsel that the holders of
the senior debt securities will not recognize income, gain, or
loss for federal income tax purposes as a result of the
defeasance or covenant defeasance and will be subject to federal
income tax on the same amount, in the same manner and at the
same times as would have been the case if defeasance or covenant
defeasance had not occurred. That opinion, in the case of
defeasance, but not covenant defeasance, must refer to and be
based upon a ruling received by us from the Internal Revenue
Service or published as a revenue ruling or upon a change in
applicable federal income tax law.
If we exercise our covenant defeasance option with respect to a
particular series of senior debt securities, then even if there
were a default under the related covenant, payment of those
senior debt securities could not be accelerated. We may exercise
our defeasance option with respect to a particular series of
senior debt securities even if we previously had exercised our
covenant defeasance option. If we exercise our defeasance
option, payment of those senior debt securities may not be
accelerated because of any event of default. If we exercise our
covenant defeasance option and an acceleration were to occur,
the realizable value at the
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acceleration date of the money and U.S. government
obligations in the defeasance trust could be less than the
principal and interest then due on those senior debt securities.
This is because the required deposit of money
and/or
U.S. government obligations in the defeasance trust is
based upon scheduled cash flows rather than market value, which
will vary depending upon interest rates and other factors.
Modification and Waiver. The senior indenture
provides that we, together with the trustee, may enter into
supplemental indentures without the consent of the holders of
senior debt securities to:
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evidence the assumption by another person of our obligations;
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add covenants for the benefit of the holders of all or any
series of senior debt securities;
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add any additional events of default;
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add to or change the senior indenture to permit or facilitate
the issuance of debt securities in bearer form;
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add to, change or eliminate a provision of the senior indenture
if such addition, change or elimination does not apply to a
senior debt security created prior to the execution of such
supplemental indenture or modify the rights of a holder of any
senior debt security with such provision;
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secure any senior debt security;
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establish the form or terms of senior debt securities of any
series;
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evidence the acceptance of appointment by a successor
trustee; or
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cure any ambiguity or correct any inconsistency in the senior
indenture or make other changes, provided that any such action
does not adversely affect the interests of the holders of senior
debt securities of any affected series in any material respect.
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Other amendments and modifications of the senior indenture may
be made with the consent of the holders of not less than a
majority of the aggregate principal amount of each series of the
outstanding senior debt securities affected by the amendment or
modification. No modification or amendment may, however, without
the consent of the holder of each outstanding senior debt
security affected:
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change the stated maturity of the principal of or any
installment of principal or interest, if any, on any such senior
debt security;
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reduce the principal amount of (or premium, if any) or the
interest rate, if any, on any such senior debt security or the
principal amount due upon acceleration of an original issue
discount security;
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change the place or currency of payment of principal of (or
premium, if any) or the interest, if any, on such senior debt
security;
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impair the right to sue for the enforcement of any such payment
on or with respect to any such senior debt security.
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reduce the percentage of holders of senior debt securities
necessary to modify or amend the senior indenture; or
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modify the foregoing requirements or reduce the percentage of
outstanding securities necessary to waive compliance with
certain provisions of the senior indenture or for waiver of
certain defaults.
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The holders of at least a majority of the aggregate principal
amount of the outstanding securities of any series may, on
behalf of all holders of that series, waive our required
compliance with certain restrictive provisions of the senior
indenture and may waive any past default under the senior
indenture, except a default in the payment of principal,
premium, or interest or in the performance of certain covenants.
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Consolidation, Merger, and Sale of Assets. We
may, without the consent of the holders of any senior debt
securities, consolidate or merge with any other person or
transfer or lease all or substantially all of our assets to
another person or permit another corporation to merge into
Associated Banc-Corp, as long as:
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the successor is a person organized under U.S. law;
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the successor, if not us, assumes our obligations on the senior
debt securities and under the senior indenture;
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after giving effect to the transaction, no event of default, and
no event which, after notice or lapse of time or both, would
become an event of default, shall have occurred and be
continuing; and
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other specified conditions are met.
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Subordinated
Debt Securities
The subordinated debt securities will be direct, unsecured
general obligations of Associated Banc-Corp. The subordinated
debt securities will be subordinate and junior in right of
payment to all senior indebtedness and, in certain
circumstances described below relating to our dissolution,
winding-up,
liquidation, or reorganization to all other
financial obligations. The subordinated indenture does not limit
the amount of debt, including senior indebtedness, or other
financial obligations we may incur.
Unless otherwise specified in the applicable prospectus
supplement, the maturity of the subordinated debt securities
will be subject to acceleration only upon our bankruptcy or
reorganization. See Events of Default
below.
The holders of subordinated debt securities of a series that are
specified to be convertible into our common stock or other
securities will be entitled as specified in the applicable
prospectus supplement to convert those convertible subordinated
debt securities into common stock or such other securities, at
the conversion price, at the times, and on the terms set forth
in the prospectus supplement.
If so specified in the applicable prospectus supplement, the
holders of subordinated debt securities of any series may be
obligated at maturity, or at any earlier time specified in the
prospectus supplement, to exchange that series of subordinated
debt securities for capital securities. Capital
securities may consist of our common stock, perpetual
preferred stock, or other capital securities of Associated
Banc-Corp acceptable to the Federal Reserve Board, which is our
primary federal banking regulator. The terms of any such
exchange and of the capital securities that will be issued upon
the exchange will be described in the applicable prospectus
supplement. Whenever subordinated debt securities are
exchangeable for capital securities, we will be obligated to
deliver capital securities with a market value equal to the
principal amount of those subordinated debt securities. In
addition, we will unconditionally undertake, at our expense, to
sell the capital securities in a secondary offering on behalf of
any holders who elect to receive cash for the capital securities.
Subordination. The subordinated debt
securities will be subordinate and junior in right of payment to
all senior indebtedness and, under certain circumstances
described below, to all other financial obligations.
As used in this prospectus, senior indebtedness
means the principal of, premium, if any, and interest on all
indebtedness for money borrowed by us, whether or not the senior
indebtedness was outstanding on the date that the subordinated
indenture became effective or was created, assumed, or incurred
after that date (including all indebtedness for money borrowed
by another person that we guarantee). Senior indebtedness,
however, does not include indebtedness that is stated in its
terms not to be superior to or to have the same rank as the
subordinated debt securities.
The subordinated indenture defines other financial
obligations to mean all indebtedness of Associated
Banc-Corp for claims in respect of derivative products, such as
interest and foreign exchange rate contracts, commodity
contracts, and similar arrangements, except obligations that
constitute senior indebtedness and except obligations that are
expressly stated in their terms to have the same rank as, or not
to rank senior to, the subordinated debt securities.
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If the maturity of any subordinated debt securities is
accelerated, the holders of all senior indebtedness outstanding
at the time of such acceleration will first be entitled to
receive payment in full of all amounts due thereon before the
holders of subordinated debt securities will be entitled to
receive any payment upon the principal of (or premium, if any)
or interest, if any, on the subordinated securities.
No payments on account of principal (or premium, if any) or
interest, if any, in respect of the subordinated debt securities
may be made if there shall have occurred and be continuing:
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a default in the payment of principal of (or premium, if any) or
interest on senior indebtedness;
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an event of default with respect to any senior indebtedness
resulting in the acceleration of the maturity thereof; or
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if any judicial proceeding shall be pending with respect to any
such default.
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In addition, upon our dissolution,
winding-up,
liquidation, or reorganization:
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we must pay to the holders of senior indebtedness the full
amounts of principal of, premium, if any, and interest, if any,
on the senior indebtedness before any payment or distribution is
made on the subordinated debt securities, and
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if, after we have made those payments on the senior
indebtedness, amounts are available for payment on the
subordinated debt securities and creditors who hold other
financial obligations have not received their full payments,
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then we will first use amounts available for payment on the
subordinated debt securities to pay in full all other financial
obligations before we may make any payment on the subordinated
debt securities.
No Limitation on Disposition of Voting Stock of Principal
Subsidiary Bank. The subordinated indenture does
not contain a covenant prohibiting us from selling or otherwise
disposing of any shares of voting stock of our subsidiary bank,
or securities convertible into, or options, warrants, or rights
to purchase shares of, voting stock of our subsidiary bank. The
subordinated indenture also does not prohibit our subsidiary
bank from issuing any shares of their voting stock or securities
convertible into, or options, warrants, or rights to purchase
shares of, their voting stock.
Events of Default. An event of default under
the subordinated indenture with respect to subordinated debt
securities of any series occurs upon certain events in
bankruptcy, insolvency or reorganization involving us and any
other event of default regarding that series of debt securities.
If an event of default in connection with any outstanding series
of subordinated debt securities occurs and is continuing, the
trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of that series may declare the
principal amount due and payable immediately. Subject to certain
conditions, the declaration of acceleration may be rescinded and
annulled by the holders of a majority of the principal amount of
subordinated debt securities of that series.
In addition, the subordinated indenture also provides for
defaults, which are not events of default and do not entitle the
holders to accelerate the principal of the subordinated debt
securities. The following are defaults under the subordinated
indenture with respect to subordinated debt securities of a
series:
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our failure to pay principal of, or any premium on, any debt
security of that series when the payment is due;
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our failure to pay any interest on any debt security of that
series when the interest payment is due, and continuance of this
default for 30 days;
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our default in the performance, or breach, of any of our
covenants or warranties in the indenture, other than a covenant
or warranty included in the indenture solely for the benefit of
a different series of subordinated debt securities, which has
continued for 90 days after we have been given written
notice of the default as provided in the indenture;
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any event of default under the subordinated indenture; and
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any other default regarding that series of debt securities.
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If there is a default in payment of principal or interest (not
cured within 30 days) in connection with any outstanding
series of subordinated debt securities and upon demand of the
trustee, we will be required to pay the whole principal amount
(and premium, if any) and interest, if any, then due and payable
on the subordinated debt securities of that series to the
trustee for the benefit of the holders of the outstanding
subordinated debt securities of that series.
Defeasance and Covenant Defeasance. The
subordinated indenture contains a provision that, if made
applicable to any series of subordinated debt securities,
permits us to elect defeasance
and/or
covenant defeasance under the same terms described above in
Senior Debt Securities Defeasance and Covenant
Defeasance.
Modification and Waiver. The subordinated
indenture contains provisions providing for the amendment or
modification of the subordinated indenture and waiver of
compliance with certain provisions or past defaults under the
same terms described above in Senior Debt
Securities Modification and Waiver.
Additionally, no modification or amendment to the subordinated
indenture may, without the consent of the holder of each
outstanding subordinated debt security affected:
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modify the subordination provisions of the subordinated debt
securities of any series in a manner adverse to the holders of
the subordinated debt securities; or
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adversely affect the right to convert any subordinated debt
security.
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Consolidation, Merger, and Sale of Assets. We
may, without the consent of the holders of any subordinated debt
securities, consolidate or merge with any other person or
transfer or lease all or substantially all of our assets to
another person or permit another corporation to merge into
Associated Banc-Corp under the same terms described above in
Senior Debt Securities Consolidation, Merger,
and Sale of Assets.
Information
Concerning the Trustee
Associated Banc-Corp and some of our subsidiaries maintain
deposits and conduct other banking transactions with the trustee
under each of the senior indenture and the subordinated
indenture in the ordinary course of business.
Governing
Law
The senior indenture, the subordinated indenture, the senior
debt securities, and the subordinated debt securities will be
governed by and construed in accordance with the laws of the
State of New York.
DESCRIPTION
OF JUNIOR SUBORDINATED DEBT SECURITIES
General
We have described below certain general terms and provisions of
the junior subordinated debt securities issued pursuant to this
prospectus. The applicable prospectus supplement will describe
the specific terms of the series of the junior subordinated debt
securities offered under that prospectus supplement and any
general terms outlined in this section that will not apply to
those junior subordinated debt securities.
The junior subordinated indenture will be qualified under the
Trust Indenture Act. A form of the junior subordinated
indenture is filed as an exhibit to the registration statement
relating to this prospectus.
This section summarizes the material terms and provisions of the
junior subordinated indenture. Because this is a summary, it
does not contain all of the details found in the full text of
the junior subordinated indenture and the junior subordinated
debt securities. If you would like additional information, you
should read the form of junior subordinated indenture and the
form of junior subordinated securities.
We can issue the junior subordinated debt securities in one or
more series.
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Unless otherwise described in the applicable prospectus
supplement regarding any offered junior subordinated debt
securities, the junior subordinated debt securities will rank
equally with all other series of junior subordinated debt
securities, will be unsecured and will be subordinate and junior
in priority of payment to all of our senior and subordinated
debt securities as described below under
Subordination.
The indenture does not limit the amount of junior subordinated
debt securities which we may issue, nor does it limit our
issuance of any other secured or unsecured debt securities.
We can issue the junior subordinated debt securities under a
supplemental indenture or an officers certificate, in
either case as authorized by a board resolution.
The applicable prospectus supplement will describe the following
terms of the junior subordinated debt securities:
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the title;
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any limit on the aggregate principal amount that may be issued;
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the date(s) on which the principal is payable or the method of
determining that date;
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the interest rate, if any, the interest payment dates, any
rights we may have to defer or extend an interest payment date,
and the regular record date for any interest payment or the
method by which any of the foregoing will be determined;
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the place(s) where payments shall be payable and where the
junior subordinated debt securities can be presented for
registration of transfer or exchange, and the place(s) where
notices and demands to or on us can be made;
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any period(s) within which or date(s) on which, price(s) at
which and the terms and conditions on which the junior
subordinated debt securities can be redeemed, in whole or in
part, at our option or at the option of a holder of the junior
subordinated debt securities;
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our or any holders obligation or right, if any, to redeem,
purchase or repay the junior subordinated debt securities and
other related terms and provisions;
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the denominations in which any junior subordinated debt
securities will be issued;
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if other than in U.S. dollars, the currency in which the
principal, premium and interest, if any, that the junior
subordinated debt securities will be payable or denominated;
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any additions, modifications or deletions in the events of
default or covenants specified in the indenture;
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the portion of the principal amount that will be payable at
declaration of acceleration of the maturity;
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any additions or changes to the indenture as will be necessary
to facilitate the issuance of a series of junior subordinated
debt securities in bearer form, registrable or not registrable
for the principal, and with or without interest coupons;
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the index or indices used to determine the amount of payments of
principal and premium, if any, on any junior subordinated debt
securities and how these amounts will be determined;
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the terms and conditions under which temporary global securities
are exchanged for definitive junior subordinated debt securities
of the same series;
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whether the junior subordinated debt securities will be issued
in global form and, in that case, the terms and the depositary
for these global securities;
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the paying agent;
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the terms and conditions of any right to convert or exchange any
junior subordinated debt securities into any of our other
securities or property;
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the form of trust agreement and guarantee agreement;
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the relative degree, if any, to which the junior subordinated
debt securities shall be senior or subordinated to other junior
subordinated debt securities or any of our other indebtedness in
right of payment; and
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any other terms of the junior subordinated debt securities
consistent with the provisions of the indenture.
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Junior subordinated debt securities may be sold at a substantial
discount below their stated principal amount, bearing no
interest or interest at a rate which at the time of issuance is
below market rates. Some U.S. federal income tax
consequences and special considerations applicable to any such
junior subordinated debt securities will be described in the
applicable prospectus supplement.
The applicable prospectus supplement will describe the
restrictions, elections, some U.S. federal income tax
consequences, and specific terms and other information related
to the junior subordinated debt securities if the purchase
price, principal, premium, or interest of any of the junior
subordinated debt securities is payable or denominated in one or
more foreign currencies or currency units.
If any index is used to determine the amount of payments of
principal, premium, or interest on any series of junior
subordinated debt securities, special U.S. federal income
tax, accounting and other considerations applicable to the
junior subordinated debt securities will be described in the
applicable prospectus supplement.
Option to
Extend Interest Payment Dates
If provided in the applicable prospectus supplement and if the
junior subordinated debt securities are not in default, we will
have the right at any time and from time to time during the term
of any series of junior subordinated debt securities to defer
payment of interest for a number of consecutive interest payment
periods as specified in the applicable prospectus supplement (an
Extension Period).
Redemption
Some U.S. federal income tax consequences and
considerations applicable to any junior subordinated debt
securities that permit Extension Periods will be described in
the applicable prospectus supplement.
Unless otherwise indicated in the applicable prospectus
supplement, junior subordinated debt securities will not be
subject to any sinking fund.
Unless the applicable prospectus supplement indicates otherwise,
we may, at our option and subject to the receipt of prior
approval by the Federal Reserve Board if then required under
applicable capital guidelines or policies, redeem the junior
subordinated debt securities of any series:
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on or after the date as specified in the applicable prospectus
supplement, in whole at any time or in part from time to time;
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in whole (but not in part), upon the occurrence of a Tax Event,
an Investment Company Event or a Regulatory Capital Event, at
any time within 90 days of the occurrence of such Tax
Event, Investment Company Event or Regulatory Capital Event; or
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as is otherwise specified in the applicable prospectus
supplement.
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If the junior subordinated debt securities of any series are
redeemable only on or after a specified date or by the
satisfaction of additional conditions, the applicable prospectus
supplement will specify the date or describe these conditions.
Junior subordinated debt securities will be redeemable in the
denominations specified in the prospectus supplement. Unless the
applicable prospectus supplement indicates otherwise, junior
subordinated debt securities will be redeemed at the redemption
price.
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A Tax Event means that either we or a trust will have received
an opinion of counsel (which may be our counsel but not an
employee and which must be reasonably acceptable to the property
trustee) experienced in tax matters stating that, as a result of
any:
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amendment to, or change (including any announced prospective
change) in, the laws (or any regulations under those laws) of
the U.S. or any political subdivision or taxing authority
affecting taxation;
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interpretation or application of the laws or regulations
enumerated in the preceding bullet point, by any court,
governmental agency or regulatory authority;
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there is more than an insubstantial risk that:
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a trust is, or will be within 90 days of the date of the
opinion of counsel, subject to U.S. federal income tax on
interest received on the junior subordinated debt securities;
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interest payable by us to the trusts on the junior subordinated
debt securities is not, or will not be within 90 days of
the date of the opinion of counsel, deductible, in whole or in
part, for U.S. federal income tax purposes; or
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a trust is, or will be within 90 days of the date of the
opinion of counsel, subject to more than a minimal amount of
other taxes, duties, assessments or other governmental charges.
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An Investment Company Event means the receipt by us and a trust
of an opinion of counsel (which may be our counsel or counsel of
an affiliate but not an employee and which must be reasonably
acceptable to the property trustee) experienced in matters
relating to investment companies to the effect that, as a result
of any:
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change in law or regulation; or
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change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory
authority,
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there is more than an insubstantial risk that the trust is or
will be considered an investment company that is required to be
registered under the Investment Company Act, which change
becomes effective on or after the original issuance of the
capital securities.
A Regulatory Capital Event means the reasonable determination by
us that, as a result of any:
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amendment to, or change (including any prospective change) in,
the laws or any applicable regulation of the U.S. and any
political subdivision; or
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official or administrative pronouncement or action or judicial
decision interpreting or applying the laws or regulations, which
amendment is effective or announced on or after the date of
issuance of the capital securities,
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there is more than an insubstantial risk that we will not be
able to treat the capital securities (or any substantial portion
of such capital securities) as Tier 1 capital (or its
equivalent) for purposes of the capital adequacy guidelines of
the Federal Reserve Board, in effect and applicable to us.
Notice of any redemption will be mailed at least 30 days
and not more than 60 days before the redemption date to
each holder of redeemable junior subordinated debt securities,
at its registered address. Unless we default in the payment of
the redemption price, on or after the redemption date, interest
will cease to accrue on the junior subordinated debt securities
or portions called for redemption.
If the junior subordinated debt securities are redeemed only in
part, they will be redeemed pro rata or by lot or by any other
method selected by the trustee.
Restrictions
on Some Payments
We agreed in the indenture that we will not, and will not permit
any of our subsidiaries to:
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declare or pay any dividends or distributions, or redeem,
purchase, acquire, or make a liquidation payment on any of our
capital stock;
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make any payment of principal of interest or premium, if any, on
or repay, repurchase or redeem any of our debt securities
(including other junior subordinated debt securities) that rank
equally with or junior in interest to the junior subordinated
debt securities; or
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make any guarantee payments on any guarantee of debt securities
of any of our subsidiaries (including under other guarantees) if
the guarantee ranks equally with or junior in interest to the
junior subordinated debt securities, except in some
circumstances;
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other than:
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dividends or distributions payable in our common stock;
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any declaration of a dividend in connection with the
implementation of a rights plan or the issuance of stock under
any such plan or the redemption or repurchase of any such rights
pursuant to any such plan;
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payments under our guarantee related to the capital securities
issued by the trust holding securities of that series; and
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purchases of our common stock related to the issuance of common
stock or rights under any of our benefit plans for our
directors, officers or employees.
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These restrictions apply only if:
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we have actual knowledge of an event that, with the giving of
notice or the lapse of time, or both, would constitute an event
of default under the indenture and we have not taken reasonable
steps to cure the event of default;
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the junior subordinated debt securities are held by a trust that
is the issuer of a series of related capital securities and we
are in default on our payment obligations under the guarantee
relating to those related capital securities; or
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we have given notice of our selection of an Extension Period on
the junior subordinated debt securities of a series and we have
not rescinded the notice, or Extension Period, or any extension
relating to the junior subordinated debt securities shall be
continuing.
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Modification
of Indenture
We may and the trustee may change the indenture without your
consent for specified purposes, including:
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to fix any ambiguity, defect or inconsistency, provided that the
change does not materially adversely affect the interest of any
holder of any series of junior subordinated debt securities or
the interest of a holder of any related series of capital
securities so long as they remain outstanding; and
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to qualify or maintain the qualification of the indenture under
the Trust Indenture Act.
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In addition, under the indenture, we may and the trustee may
modify the indenture to affect the rights of the holders of the
series of the junior subordinated debt securities, with the
consent of the holders of a majority in principal amount of the
outstanding series of junior subordinated debt securities that
are affected. However, we cannot and the trustee cannot take the
following actions without the consent of each holder of the
outstanding junior subordinated debt securities affected:
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change the maturity date of any series of junior subordinated
debt securities (except as otherwise specified in the applicable
prospectus supplement), or reduce the principal amount, rate of
interest, or extend the time of payment of interest;
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reduce the percentage in principal amount of junior subordinated
debt securities of any series, necessary to modify the indenture;
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modify some provisions of the indenture relating to modification
or waiver, except to increase the required percentage; or
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modify the provisions of the indenture relating to the
subordination of the junior subordinated debt securities of any
series in a manner adverse to the holders, provided that as long
as any of the related capital securities are outstanding, no
modification will be made that adversely affects the holders of
those capital securities in any material respect. Also the
indenture cannot be terminated, and a waiver of any event of
default or compliance with any covenant under the indenture
cannot be effective, without the prior consent of the holders of
a majority of the liquidation amount of the related capital
securities unless and until the principal of the corresponding
junior subordinated debt securities and all accrued and unpaid
interest have been paid in full and some other conditions are
satisfied.
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In addition, we may and the trustee may execute any supplemental
indenture to create any new series of junior subordinated debt
securities, without the consent of any holders.
Events of
Default
The following are events of defaults under the indenture:
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failure to pay interest, when due under the terms of the series
of junior subordinated debt securities, and that failure
continues for 30 days and the time for payment has not been
extended or deferred;
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failure to pay any principal of or premium on the series of
junior subordinated debt securities when due, whether at
maturity, redemption by declaration or otherwise;
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failure to observe or perform in any material respect, any other
covenant contained in the indenture, and that failure continues
for 60 days after we receive written notice from the
trustee or holders of at least 25% in principal amount of the
outstanding series of junior subordinated debt
securities; or
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some events of bankruptcy, insolvency or reorganization.
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Remedies
The holders of a majority in aggregate outstanding principal
amount of any series of junior subordinated debt securities have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee. If an event
of default under the indenture of any series occurs and is
continuing, the junior subordinated trustee or the holders of at
least 25% in aggregate principal amount of the outstanding
junior subordinated debt securities can declare the unpaid
principal and accrued interest, if any, to the date of
acceleration on all the outstanding junior subordinated debt
securities of that series to be due and payable immediately. If
the trustee or holders of the corresponding junior subordinated
debt securities fail to make this declaration, the holders of at
least 25% in aggregate liquidation amount of the related capital
securities will have that right.
The holders of a majority in aggregate outstanding principal of
the series of junior subordinated debt securities can rescind a
declaration of acceleration and waive the default if the default
(other than the non-payment of principal which has become due
solely by acceleration) has been cured and a sum sufficient to
pay all principal and interest due (other than by acceleration)
has been deposited with the trustee. If the holders of the
corresponding junior subordinated debt securities fail to
rescind a declaration and waive the default, the holders of a
majority in aggregate liquidation amount of the related capital
securities will have that right.
The holders of a majority in aggregate outstanding principal
amount of the junior subordinated debt securities of any
affected series may, on behalf of holders of all of the junior
subordinated debt securities, waive any past default, except:
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a default in the payment of principal or interest (unless the
default has been cured or a sum sufficient to pay all matured
installments of principal and interest has been deposited with
the trustee); or
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a default in a covenant or provision of the indenture which
cannot be modified or amended without the consent of the holders
of each outstanding junior subordinated debt securities.
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If the holders of the corresponding junior subordinated debt
securities fail to rescind a declaration and waive the default,
the holders of a majority in liquidation amount of the related
capital securities will have that right.
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We are required to file annually, with the trustee, a
certificate stating whether or not we are in compliance with all
the conditions and covenants applicable to us under the junior
subordinated indenture.
If an event of default occurs and is continuing on a series of
corresponding junior subordinated debt securities, the property
trustee will have the right to declare the principal of, and the
interest on, the corresponding junior subordinated debt
securities, and any amounts payable under the indenture, to be
immediately due and payable, and to enforce its other rights as
a creditor for these corresponding junior subordinated debt
securities.
Enforcement
of Some Rights by Holders of Capital Securities
If an event of default under the indenture has occurred and is
continuing, and this event is attributable to our failure to pay
interest or principal on the related junior subordinated debt
securities when due, you may institute a legal proceeding
directly against us to enforce the payment of the principal of
or interest on those subordinated debt securities having a
principal amount equal to the liquidation amount of your related
capital securities. We cannot amend the indenture to remove the
right to bring a direct action without the written consent of
holders of all capital securities. If the right to bring a
direct action is removed, the applicable trust may become
subject to reporting obligations under the Exchange Act.
You would not be able to exercise directly any remedy other than
those stated in the preceding paragraph which are available to
the holders of the junior subordinated debt securities unless
the property trustee fails to enforce its rights under the
junior subordinated debt securities. See Description of
Capital Securities Trust Enforcement
Event.
Consolidation,
Merger, Sale of Assets and Other Transactions
The indenture states that we cannot consolidate with or merge
into any other person or convey, transfer or lease our
properties and assets substantially as an entirety to any
person, and no person will consolidate with or merge into us or
convey, transfer or lease its properties and assets
substantially as an entirety to us, unless:
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the successor is organized under the laws of the U.S. or
any state or the District of Columbia, and expressly assumes all
of our obligations under the indenture;
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immediately after the transaction, no event of default, and no
event which, after notice or lapse of time or both, would become
an event of default, shall have occurred and be continuing;
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this transaction is permitted under the related trust agreement
and the related guarantee and does not give rise to any breach
or violation of the related trust agreement or the related
guarantee; and
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some other conditions prescribed in the indenture are met.
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The general provisions of the indenture do not afford protection
to the holders of the junior subordinated debt securities in the
event of a highly leveraged or other transaction involving us
that may adversely affect the holders.
Satisfaction
and Discharge
The indenture provides that when all junior subordinated debt
securities not previously delivered to the trustee for
cancellation:
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have become due and payable, or will become due and payable
within one year;
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we deposit with the trustee money sufficient to pay and
discharge the entire indebtedness on the junior subordinated
debt securities;
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we deliver to the trustee officers certificates and
opinions of counsel; and
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we comply with some other requirements under the indenture,
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then the indenture will cease to be of further effect and we
will be considered to have satisfied and discharged the
indenture.
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Defeasance
Junior subordinated debt securities of a series may be defeased
at any time in accordance with their terms and as set forth in
the indenture and described briefly below, unless the terms of
the series provide otherwise. Any defeasance may terminate all
of our obligations (with limited exceptions) with respect to a
series of junior subordinated debt securities and the indenture
(legal defeasance), or it may terminate only our
obligations under any restrictive covenants which may be
applicable to a particular series (covenant
defeasance).
We may exercise our legal defeasance option even though we have
also exercised our covenant defeasance option. If we exercise
the legal defeasance option with respect to a series of junior
subordinated debt securities, that series may not be accelerated
because of an event of default. If we exercise the covenant
defeasance option, that series of junior subordinated debt
securities may not be accelerated by reference to any
restrictive covenants which may be applicable to that particular
series.
To exercise either defeasance option as to a series of junior
subordinated debt securities, we must:
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irrevocably deposit in trust (the defeasance trust)
with the trustee or another trustee money or
U.S. government obligations;
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deliver a certificate from a nationally recognized firm of
independent accountants expressing their opinion that the
payments of principal and interest when due on the deposited
U.S. government obligations, without reinvestment, plus any
deposited money without investment, will provide cash at the
times and in the amounts necessary to pay the principal and
interest when due on all debt securities of the series upon
maturity or redemption, as the case may be; and
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comply with certain other conditions. In particular, we must
obtain an opinion of tax counsel that the defeasance will not
result in recognition of any gain or loss to holders for federal
income tax purposes.
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U.S. government obligations are direct obligations of
(a) the U.S. or (b) an agency or instrumentality
of the U.S., the payment of which is unconditionally guaranteed
by the U.S., and which, in either case (a) or (b), have the
full faith and credit of the United States of America pledged
for payment and which are not callable at the issuers
option. It also includes certificates representing an ownership
interest in such obligations.
Subordination
The indenture provides that any junior subordinated debt
securities will be subordinate and junior in right of payment to
all senior and subordinated debt securities.
Upon any payment or distribution of assets to creditors upon our
liquidation, dissolution, winding up, reorganization, whether
voluntary or involuntary, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency,
debt restructuring or similar proceedings, the holders of senior
and subordinated debt securities will first be entitled to
receive payment in full of the principal, premium, or interest
due before the holders of junior subordinated debt securities
will be entitled to receive any payment or distribution.
In the event of the acceleration of the maturity of any junior
subordinated debt securities, the holders of all senior and
subordinated debt securities outstanding at the time of the
acceleration will first be entitled to receive payment in full
of all amounts due on the senior and subordinated debt
securities (including any amounts due upon acceleration) before
the holders of junior subordinated debt securities.
No payment, by or on our behalf, of principal, premium, if any,
or interest, on the junior subordinated debt securities shall be
made if at the time of the payment, there exists:
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a default in any payment on any senior and subordinated debt
securities, or any other default under which the maturity of any
senior and subordinated debt securities has been
accelerated; and
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any judicial proceeding relating to the defaults which shall be
pending.
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We are a holding company and most of our operating assets are
owned by our subsidiaries. We rely primarily on dividends from
our subsidiaries to meet our obligations to pay the principal of
and interest on our outstanding debt obligations and corporate
expenses. We are a legal entity separate and distinct from our
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banking and nonbanking affiliates. Our principal sources of
income are dividends, interest and fees from our banking and
nonbanking affiliates. Our banking subsidiary is subject to some
restrictions imposed by federal law on any extensions of credit
to, and some other transactions with, us and some other
affiliates, and on investments in stock or other securities.
These restrictions prevent us and our other affiliates from
borrowing from our banking subsidiary unless the loans are
secured by various types of collateral. Further, these secured
loans, other transactions and investments by our banking
subsidiary are generally limited in amount for us and each of
our other affiliates to 10% of our banking subsidiarys
capital and surplus, and as to us and all of our other
affiliates to an aggregate of 20% of our banking
subsidiarys capital and surplus. In addition, payment of
dividends by our banking subsidiary to us are subject to ongoing
review by banking regulators and to various statutory
limitations and in some circumstances requires approval by
banking regulatory authorities. Because we are a holding
company, our right to participate in any distribution of assets
of any subsidiary upon the liquidation or reorganization or
otherwise of our subsidiary is subject to the prior claims of
creditors of the subsidiary, unless we can be recognized as a
creditor of that subsidiary. Accordingly, the junior
subordinated debt securities will be effectively subordinated to
all existing and future liabilities of our banking subsidiary,
and holders of junior subordinated debt securities should look
only to our assets for payments on the junior subordinated debt
securities.
The indenture places no limitation on the amount of senior and
subordinated debt securities that we may incur. We expect to
incur from time to time additional indebtedness constituting
senior and subordinated debt securities.
The indenture provides that these subordination provisions, as
they relate to any particular issue of junior subordinated debt
securities, may be changed before the issuance. The applicable
prospectus supplement will describe any of these changes.
Denominations,
Registration and Transfer
Unless the applicable prospectus supplement specifies otherwise,
we will issue the junior subordinated debt securities in
registered form only, without coupons and, in the denominations
specified in the prospectus supplement. Holders can exchange
junior subordinated debt securities of any series for other
junior subordinated debt securities:
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of the same issue and series;
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in any authorized denominations;
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in a like principal amount;
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of the same date of issuance and maturity; and
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bearing the same interest rate.
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Subject to the terms of the indenture and the limitations
applicable to global securities stated in the applicable
prospectus supplement, junior subordinated debt securities may
be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer duly endorsed, or a
satisfactory written instrument of transfer, duly executed) at
the office of the security registrar or at the office of any
transfer agent designated by us for that purpose.
Unless otherwise provided in the applicable prospectus
supplement, no service charge will be made for any registration
of transfer or exchange, but we may require payment of any taxes
or other governmental charges. We have appointed the trustee as
security registrar for the junior subordinated debt securities.
Any transfer agent (in addition to the security registrar)
initially designated by us for any junior subordinated debt
securities will be named in the applicable prospectus
supplement. We may at any time designate additional transfer
agents or rescind the designation of any transfer agent or
approve a change in the location through which any transfer
agent acts, except that we will be required to maintain a
transfer agent in each place of payment for the junior
subordinated debt securities of each series.
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If the junior subordinated debt securities of any series are to
be redeemed, neither the trustee nor us will be required to:
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issue, register the transfer of, or exchange any junior
subordinated debt securities of any series during a period
beginning on the business day that is 15 days before the
day of mailing of notice of redemption of any junior
subordinated debt securities that is selected for redemption and
ending at the close of business on the day of mailing of the
relevant notice; or
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transfer or exchange any junior subordinated debt securities
selected for redemption, except the unredeemed portion of any
junior subordinated debt securities being redeemed in part.
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Global
Junior Subordinated Debt Securities
We may issue, in whole or in part, the junior subordinated debt
securities of a series in the form of one or more global junior
subordinated debt securities that will be deposited with, or on
behalf of, a depositary identified in the applicable prospectus
supplement relating to those series. The specific terms of the
depositary arrangements for a series of junior subordinated debt
securities will be described in the applicable prospectus
supplement. See Global Securities.
Payment
and Paying Agents
Unless otherwise indicated in the applicable prospectus
supplement, payment of principal of and any premium and interest
on junior subordinated debt securities will be made at the
office of the trustee or at the office of the paying agent(s)
designated by us, from time to time, in the applicable
prospectus supplement. However, we may make interest payment by:
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check mailed to the address of the person entitled to it at the
address appearing in the securities register (except in the case
of global junior subordinated debt securities); or
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transfer to an account maintained by the person entitled to it
as specified in the securities register, so long as we receive
proper transfer instructions by the regular record date.
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Unless otherwise indicated in the applicable prospectus
supplement, payment of the interest on junior subordinated debt
securities on any interest payment date will be made to the
person in whose name the junior subordinated debt securities are
registered at the close of business on the regular record date
relating to the interest payment date, except in the case of
defaulted interest.
We may at any time designate additional paying agents or cancel
the designation of any paying agent. We will at all times be
required to maintain a paying agent in each place of payment for
each series of junior subordinated debt securities.
Any money deposited with the trustee or any paying agent, or
held by us in trust, for the payment of the principal of and any
premium or interest on any junior subordinated debt securities
that remains unclaimed for two years after the principal, any
premium or interest has become due and payable will, at our
request, be repaid to us and the holder of the junior
subordinated debt securities can then only look to us for
payment.
Information
About the Trustee
The Trust Indenture Act describes the duties and
responsibilities of the trustee. Subject to the provisions under
the Trust Indenture Act, the trustee has no obligation to
exercise any of the powers vested in it by the indenture, at the
request of any holder of junior subordinated debt securities,
unless the holder offers reasonable indemnity against the costs,
expenses and liabilities that are incurred. The trustee is not
required to expend or risk its own funds or otherwise incur
personal financial liability in the performance of its duties if
it reasonably believes that repayment or adequate indemnity is
not reasonably assured to it.
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Corresponding
Junior Subordinated Debt Securities
The corresponding junior subordinated debt securities are issued
in one or more series of junior subordinated debt securities
under the indenture with terms corresponding to the terms of a
series of related capital securities. Concurrently with the
issuance of each trusts capital securities, the trust will
invest the proceeds and the consideration paid by us for the
related common securities in a series of corresponding junior
subordinated debt securities. Each series of corresponding
junior subordinated debt securities will be in the principal
amount equal to the aggregate stated liquidation amount of the
related capital securities and the common securities of the
trust and will rank equally with all other series of junior
subordinated debt securities. As a holder of the related capital
securities for a series of corresponding junior subordinated
debt securities, you will have rights in connection with
modifications to the indenture or at the occurrence of events of
default under the indenture described under
Modification of Indenture and Events
of Default, unless provided otherwise in the applicable
prospectus supplement for these related capital securities.
Unless otherwise specified in the applicable prospectus
supplement, if a Tax Event relating to a trust of related
capital securities occurs and is continuing, we have the option,
and subject to prior approval by the Federal Reserve Board (if
required at the time under applicable capital guidelines or
policies), to redeem the corresponding junior subordinated debt
securities at any time within 90 days of the occurrence of
the Tax Event, in whole but not in part, at the redemption price.
As long as the applicable trust is the holder of all outstanding
series of corresponding junior subordinated debt securities, the
trust will use the proceeds of the redemption to redeem the
corresponding capital securities and common securities in
accordance with their terms. We may not redeem a series of
corresponding junior subordinated debt securities in part,
unless all accrued and unpaid interest has been paid in full on
all outstanding corresponding junior subordinated debt
securities of the applicable series.
We will covenant in the indenture that if and as long as:
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the trust of the related series of capital securities and common
securities is the holder of all the corresponding junior
subordinated debt securities;
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a Tax Event related to the trust has occurred and is
continuing; and
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we have elected, and have not revoked our election, to pay
Additional Sums for the capital securities and common
securities; we will pay to the trust the Additional Sums.
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Additional Sums refers to the additional amounts required to be
paid so that the amount of distributions due and payable by a
trust on outstanding capital securities and common securities
shall not be reduced because of any additional taxes, duties and
other governmental charges to which a trustee is subject because
of a Tax Event.
We will also covenant, as to each series of corresponding junior
subordinated debt securities:
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to maintain directly or indirectly 100% ownership of the common
securities of the trust to which corresponding junior
subordinated debt securities have been issued, provided that
some successors which are permitted under the indenture, may
succeed to our ownership of the common securities;
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not to voluntarily terminate,
wind-up or
liquidate any trust, except:
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with prior approval of the Federal Reserve Board if then so
required under applicable capital guidelines or policies of the
Federal Reserve Board; and
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in connection with a distribution of corresponding junior
subordinated debt securities to the holders of the capital
securities in liquidation of a trust, or in connection with some
mergers, consolidations or amalgamations permitted by the
related trust agreement; and
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to use our reasonable efforts, consistent with the terms and
provisions of the related trust agreement, to cause the trust to
remain classified as a grantor trust and not as an association
taxable as a corporation for U.S. federal income tax
purposes.
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DESCRIPTION
OF CAPITAL SECURITIES
General
We have described below certain general terms and provisions of
the capital securities issued pursuant to this prospectus. The
applicable prospectus supplement will describe the specific
terms of the series of the capital securities offered under that
prospectus supplement and any general terms outlined in this
section that will not apply to those capital securities.
The capital securities will be issued under the trust agreement.
The trust agreement will be qualified as an indenture under the
Trust Indenture Act. The forms of trust agreement and
capital securities have been filed as an exhibit to the
registration statement.
The capital securities will have the terms described in the
applicable trust agreement or made part of the trust agreement
by the Trust Indenture Act or the Delaware Statutory
Trust Act. The terms of the capital securities will mirror
the terms of the junior subordinated debt securities held by
each trust.
This section summarizes the material terms and provisions of the
trust agreement and the capital securities. Because this is only
a summary, it does not contain all of the details found in the
full text of the trust agreement and the capital securities. If
you would like additional information you should read the form
of trust agreement and the form of capital securities.
The trust agreement of each trust authorizes the administrative
trustees to issue on behalf of each trust one series of capital
securities and one series of common securities containing the
terms described in the applicable prospectus supplement. The
proceeds from the sale of the capital securities and common
securities will be used by each trust to purchase a series of
junior subordinated debt securities from us. The junior
subordinated debt securities will be held in trust by the
property trustee for your benefit and the benefit of the holder
of the common securities.
Under the guarantee, we will agree to make payments of
distributions and payments on redemption or liquidation of the
capital securities, to the extent that the related trust holds
funds available for this purpose and has not made such payments.
See Description of the Guarantees.
The assets of each trust available for distribution to you will
be limited to payments received from us under the corresponding
junior subordinated debt securities. If we fail to make a
payment on the corresponding junior subordinated debt
securities, the property trustee will not have sufficient funds
to make related payments, including distributions, on the
capital securities.
Each guarantee, when taken together with our obligations under
the corresponding junior subordinated debt securities and the
indenture and the applicable trust agreement, will provide a
full and unconditional guarantee of amounts due on the capital
securities issued by each trust. See Relationship Among
the Capital Securities, the Corresponding Junior Subordinated
Debt Securities and the Guarantees.
Each trust will redeem an amount of capital securities equal to
the amount of any corresponding junior subordinated debt
securities redeemed.
Specific terms relating to the capital securities will be
described in the applicable prospectus supplement, including:
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the name of the capital securities and the liquidation amount of
each capital security;
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the dollar amount and number of capital securities issued;
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the annual distribution rate(s) (or method of determining this
rate(s)), the payment date(s) and the record dates used to
determine the holders who are to receive distributions;
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the date from which distributions shall be cumulative;
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the optional redemption provisions, if any, including the
prices, time periods and other terms and conditions for which
the capital securities shall be purchased or redeemed, in whole
or in part;
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the terms and conditions, if any, under which the junior
subordinated debt securities are distributed to you by the
trusts;
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any securities exchange on which the capital securities are
listed;
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whether the capital securities are to be issued in book-entry
form and represented by one or more global certificates, and if
so, the depositary for the global certificates and the specific
terms of the depositary arrangements; and
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any other relevant rights, preferences, privileges, limitations
or restrictions of the capital securities.
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The applicable prospectus supplement will also describe some
U.S. federal income tax considerations applicable to any
offering of capital securities.
Redemption
or Exchange
Redemption. If any corresponding junior
subordinated debt securities are repaid or redeemed in whole or
in part, whether at maturity or upon earlier redemption, the
property trustee will use the proceeds from this repayment or
redemption to redeem capital securities and common securities
having a liquidation amount equal to that portion of the
principal amount of corresponding junior subordinated debt
securities to be contemporaneously redeemed. The property
trustee will give you at least 30 days notice, but not more
than 60 days notice, before the date of redemption. The
capital securities and (unless there is a default under the
junior subordinated debt securities) the common securities will
be redeemed at the redemption price upon the concurrent
redemption of the corresponding junior subordinated debt
securities. See Description of the Junior Subordinated
Debt Securities Redemption.
If less than all of any series of corresponding junior
subordinated debt securities are to be repaid or redeemed on a
date of redemption, then the proceeds from the repayment or
redemption shall be allocated, pro rata, to the redemption of
the related capital securities and the common securities.
Unless the applicable prospectus supplement indicates otherwise,
we may, at our option and subject to the receipt of prior
approval by the Federal Reserve Board if then required under
applicable capital guidelines and policies, redeem any series of
corresponding junior subordinated debt securities:
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on or after the date as specified in the applicable prospectus
supplement, in whole at any time or in part from time to time;
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in whole (but not in part), upon the occurrence of a Tax Event,
an Investment Company Event or a Regulatory Capital Event, at
any time within 90 days of the occurrence of such Tax
Event, Investment Company Event or Regulatory Capital
Event; or
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as is otherwise specified in the applicable prospectus
supplement.
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Tax Event, Investment Company Event Or Regulatory Capital
Event Redemption. If a Tax Event, Investment
Company Event or Regulatory Capital Event relating to a series
of capital securities and common securities shall occur and be
continuing, we may redeem the corresponding junior subordinated
debt securities in whole, but not in part. This will cause a
mandatory redemption of all of the related capital securities
and common securities at the redemption price within
90 days following the occurrence of the Tax Event,
Investment Company Event or Regulatory Capital Event.
If a Tax Event relating to a series of capital securities and
common securities occurs and is continuing and we elect not to
redeem the corresponding junior subordinated debt securities or
to terminate the related trust and cause the corresponding
junior subordinated debt securities to be distributed to holders
of the capital securities and common securities as described
above, those capital securities and common securities will
remain outstanding and Additional Sums may be payable on the
corresponding junior subordinated debt securities.
Distribution Of Corresponding Junior Subordinated Debt
Securities. We may under certain circumstances
dissolve any trust and, after satisfaction of the liabilities of
creditors of the trust as provided by
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applicable law, cause the corresponding junior subordinated debt
securities relating to the capital securities and common
securities issued by the trust to be distributed to you and the
holders of the common securities in liquidation of the trust.
See Liquidation Distribution Upon
Dissolution.
Once the liquidation date is fixed for any distribution of
corresponding junior subordinated debt securities for any series
of capital securities:
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the series of capital securities will no longer be deemed to be
outstanding;
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the depositary for the series of capital securities, or its
nominee, will receive a registered global certificate or
certificates representing the corresponding junior subordinated
debt securities to be delivered upon the distribution; and
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certificates representing the series of capital securities not
held by the depositary or its nominee will be deemed to
represent the corresponding junior subordinated debt securities.
Those certificates will bear accrued and unpaid interest in an
amount equal to the accrued and unpaid distributions on the
series of capital securities until the certificates are
presented to the administrative trustees of the applicable trust
or their agent for transfer or reissuance.
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We cannot assure you of the market prices for the capital
securities or the corresponding junior subordinated debt
securities. Accordingly, the capital securities that you may
purchase, or the corresponding junior subordinated debt
securities that you may receive on dissolution and liquidation
of a trust, may trade at a discount of the price that you paid
for the capital securities.
Redemption Procedures
Capital securities redeemed on date of redemption shall be:
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redeemed at the redemption price with the applicable proceeds
from the contemporaneous redemption of the corresponding junior
subordinated debt securities; and
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payable on each date of redemption only to the extent that the
related trust has funds on hand available for the payment of the
redemption price.
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If notice of redemption is given, then, by 12:00 noon, New York
City time, on the date of redemption, to the extent funds are
available, the property trustee will deposit irrevocably with
the depositary funds sufficient to pay the applicable redemption
price and will give the depositary irrevocable instructions and
authority to pay the redemption price to you. See Global
Securities. If the capital securities are no longer in
book-entry form, the property trustee, to the extent funds are
available, will irrevocably deposit with the paying agent for
the capital securities, funds sufficient to pay the applicable
redemption price and will give the paying agent irrevocable
instructions and authority to pay the redemption price to you
when you surrender your certificates evidencing the capital
securities.
Distributions payable on or before the date of redemption for
any capital securities called for redemption shall be payable to
the holders on the relevant record dates for the related
distribution dates.
If notice of redemption is given and funds deposited as
required, all of your rights will cease, except your right to
receive the redemption price, and the capital securities will
cease to be outstanding.
If a date of redemption is not a business day, then payment of
the redemption price payable on the date of redemption will be
made on the next succeeding day which is a business day (and
without any interest or other payment for any delay). However,
if the business day falls in the next calendar year, then
payment will be made on the immediately preceding business day.
If payment of the redemption price of the capital securities
called for redemption is improperly withheld or refused and not
paid either by the trust or by us under the guarantee, then
distributions on the capital securities will continue to accrue
at the then applicable rate from the date of redemption to the
date that the redemption price is actually paid. In this case
the actual payment date will be the date of redemption for
purposes of calculating the redemption price.
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Subject to applicable law (including, without limitation,
federal securities law), our subsidiaries or us may at any time
and from time to time purchase outstanding capital securities by
tender offer, in the open market or by private agreement.
Payment of the redemption price on the capital securities and
any distribution of corresponding junior subordinated debt
securities to holders of capital securities shall be payable to
the holders on the relevant record date as they appear on the
register of capital securities. The record date shall be one
business day before the relevant date of redemption or
liquidation date as applicable. However, if the capital
securities are not in book-entry form, the relevant record date
for the capital securities shall be at least 15 days before
the date of redemption or liquidation date.
If less than all of the capital securities and common securities
issued by a trust are to be redeemed on a redemption date, then
the aggregate liquidation amount of the capital securities and
common securities to be redeemed shall be allocated pro rata to
the capital securities and the common securities based upon the
relative liquidation amounts of such classes. The property
trustee will select the capital securities to be redeemed on a
pro rata basis, by a method deemed fair and appropriate by it.
The property trustee will promptly notify the registrar in
writing of the capital securities selected for redemption and,
in the case of any capital securities selected for partial
redemption, the liquidation amount to be redeemed.
We will give you notice of any redemption at least 30 days
but not more than 60 days before the date of redemption at
your registered address. Unless we default in the payment of the
redemption price on the corresponding junior subordinated debt
securities, on and after the date of redemption, interest will
cease to accrue on the junior subordinated debt securities or
portions of the junior subordinated debt securities (and
distributions will cease to accrue on the related capital
securities or portions of the capital securities) called for
redemption.
Subordination
of Common Securities
Payment of distributions on, and the redemption price of, each
trusts capital securities and common securities, will be
made pro rata based on the liquidation amount of the capital
securities and common securities. However, if an event of
default under the indenture shall have occurred and is
continuing, no payment may be made on any of the trusts
common securities, unless all unpaid amounts on each of the
trusts outstanding capital securities shall have been made
or provided for in full.
If an event of default under the indenture has occurred and is
continuing, we, as holder of the trusts common securities,
will be deemed to have waived any right to act on the event of
default under the applicable trust agreement until the effect of
all events of default relating to the capital securities have
been cured, waived or otherwise eliminated. Until the events of
default under the applicable trust agreement relating to the
capital securities have been so cured, waived or otherwise
eliminated, the property trustee will act solely on your behalf
and not on our behalf as holder of the trusts common
securities, and only you and the other holders of capital
securities will have the right to direct the property trustee to
act on your behalf.
Liquidation
Distribution Upon Dissolution
Each trust agreement states that each trust shall be dissolved
on the first to occur of:
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we and the trustees consent to a dissolution at any time prior
to the initial issuance of capital securities;
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our bankruptcy, dissolution or liquidation;
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the distribution of junior subordinated debt securities having a
principal amount equal to the liquidation amount of the related
capital securities and common securities directly to the holders
of the capital securities and common securities. For this
distribution, we must give at least 30 days written notice
to the trustees;
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the redemption of all of the capital securities and common
securities of a trust; and
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a court order for the dissolution of a trust is entered.
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Upon a dissolution, following payment of any amounts owed to our
general creditors, you would be entitled to receive a
liquidation distribution from the trust assets.
If dissolution of a trust occurs as described in the first,
second and fourth bullets above, the applicable trustee shall
liquidate the trust as quickly as possible. After paying all
amounts owed to creditors, the trustee will distribute to the
holders of the capital securities and the common securities
either:
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junior subordinated debt securities having a principal amount
equal to the liquidation amount of the related capital
securities and common securities; or
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if the distribution of the junior subordinated debt securities
is determined by the property trustee not to be practical, cash
assets equal to the aggregate liquidation amount per capital
security and common security specified in an accompanying
prospectus supplement, plus accumulated and unpaid distributions
from that date to the date of payment.
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If a trust cannot pay the full amount due on its capital
securities and common securities because insufficient assets are
available for payment, then the amounts payable by the trust on
its capital securities and common securities shall be paid pro
rata. However, if an event of default under the indenture has
occurred and is continuing, the total amounts due on the capital
securities shall be paid before any distribution on the common
securities.
Trust Enforcement
Event
An event of default under the indenture constitutes an event of
default under the amended and restated trust agreement. We refer
to such an event as a Trust Enforcement Event.
For more information on events of default under the indenture,
see Description of the Junior Subordinated Debt
Securities Events of Default. Upon the
occurrence and continuance of a Trust Enforcement Event,
the property trustee, as the sole holder of the junior
subordinated debt securities, will have the right under the
indenture to declare the principal amount of the junior
subordinated debt securities due and payable. The amended and
restated trust agreement does not provide for any other events
of default.
If the property trustee fails to enforce its rights under the
junior subordinated debt securities after a holder of capital
securities has made a written request, that holder of capital
securities may, to the extent permitted by applicable law,
institute a legal proceeding against us to enforce the property
trustees rights under the junior subordinated debt
securities and the indenture without first instituting legal
proceedings against the property trustee or any other person. In
addition, if a Trust Enforcement Event is due to our
failure to pay interest or principal on the junior subordinated
debt securities when due, then the registered holder of capital
securities may institute a direct action on or after the due
date directly against us for enforcement of payment to that
holder of the principal of or interest on the junior
subordinated debt securities having a principal amount equal to
the total liquidation amount of that holders related
capital securities. In connection with such a direct action, we
will have the right under the indenture to set off any payment
made to that holder by us. The holders of capital securities
will not be able to exercise directly any other remedy available
to the holders of the junior subordinated debt securities.
Pursuant to the amended and restated trust agreement, the holder
of the common securities will be deemed to have waived any
Trust Enforcement Event regarding the common securities
until all Trust Enforcement Events regarding the capital
securities have been cured, waived or otherwise eliminated.
Until all Trust Enforcement Events regarding the capital
securities have been so cured, waived or otherwise eliminated,
the property trustee will act solely on behalf of the holders of
the capital securities and only the holders of the capital
securities will have the right to direct the enforcement actions
of the property trustee.
Removal
of Trustees
Unless an event of default under a trust agreement has occurred
and is continuing, we can remove and replace any trustee at any
time. If an event of default under a trust agreement has
occurred and is continuing, the property trustee and the
Delaware trustee may be removed or replaced by the holders of at
least a majority in liquidation amount of the outstanding
capital securities. We are the only one that have the right to
remove
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or replace the administrative trustees. No resignation or
removal of any of the trustees and no appointment of a successor
trustee shall be effective until the acceptance of appointment
by the successor trustee as described in the applicable trust
agreement.
Co-Trustees
and Separate Property Trustee
Unless an event of default under a trust agreement has occurred
and is continuing, we, as the holder of the common securities,
and the administrative trustees shall have the power:
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to appoint one or more persons approved by the property trustee
either to act as co-trustee, jointly with the property trustee,
of all or any part of the trust property, or to act as a
separate trustee of any trust property, in either case with the
powers as provided in the instrument of appointment; and
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to vest in the person(s) any property, title, right or power
deemed necessary or desirable, subject to the provisions of the
applicable trust agreement.
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If an event of default under a trust agreement has occurred and
is continuing, only the property trustee may appoint a
co-trustee or separate property trustee.
Merger or
Consolidation of Trustees
If any of the trustees merge, convert, or consolidate with or
into another entity or sells its trust operations to another
entity, the new entity shall be the successor of the trustee
under each trust agreement, provided that the corporation or
other entity shall be qualified and eligible to be a trustee.
Mergers,
Consolidations, Amalgamations or Replacements of the
Trust
A trust may not merge with or into, consolidate, amalgamate, or
be replaced by or transfer or lease all or substantially all of
its properties and assets to any other entity (a merger event),
except as described below or as described in Liquidation
Distribution Upon Dissolution. A trust may, at our
request, with the consent of the administrative trustees and
without your consent, merge with or into, consolidate,
amalgamate or be replaced by another trust provided that:
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the successor entity either:
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expressly assumes all of the obligations of the trust relating
to the capital securities; or
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substitutes for the capital securities other securities with
terms substantially the same as to the capital securities
(successor securities) so long as the successor securities have
the same rank as the capital securities for distributions and
payments upon liquidation, redemption and otherwise;
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we expressly appoint a trustee of the successor entity who has
the same powers and duties as the property trustee of the trust
as it relates to the junior subordinated debt securities;
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the successor securities are listed or will be listed on the
same national securities exchange or other organization that the
capital securities are listed on;
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the merger event does not cause the capital securities or
successor securities to be downgraded by any national
statistical rating organization;
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the merger event does not adversely affect the rights,
preferences and privileges of the holders of the capital
securities or successor securities in any material way;
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the successor entity has a purpose substantially similar to that
of the trust;
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before the merger event, we have received an opinion of counsel
stating that:
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the merger event does not adversely affect the rights of the
holders of the capital securities or any successor securities in
any material way; and
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following the merger event, neither the trust nor the successor
entity will be required to register as an investment company
under the Investment Company Act of 1940, as amended
(Investment Company Act); and
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we own all of the common securities of the successor entity and
guarantee the successor entitys obligations under the
successor securities in the same manner provided by the related
guarantee.
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The trusts and any successor entity must always be classified as
grantor trusts for U.S. federal income tax purposes unless
all of the holders of the capital securities approve otherwise.
Voting
Rights; Amendment of Each Trust Agreement
You have no voting rights except as discussed under
Mergers, Consolidations, Amalgamations or
Replacements of the Trust and Description of the
Guarantees Amendments and Assignment, and as
otherwise required by law and the applicable trust agreement. We
may amend each trust agreement without your consent:
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to fix any ambiguity or inconsistency;
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to add any additional covenants, restrictions or obligations on
the Company;
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to conform the indenture to certain security law changes; or
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to modify, eliminate or add provisions to the applicable trust
agreement as shall be necessary to ensure that each trust shall
at all times be classified as a grantor trust for
U.S. federal income tax purposes.
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The administrative trustees and we may amend each trust
agreement for any other reason as long as the holders of at
least a majority in aggregate liquidation amount of the capital
securities agree, and the trustees receive an opinion of counsel
which states that the amendment will not affect the applicable
trusts status as a grantor trust for U.S. federal
income tax purposes, or its exemption from regulation as an
investment company under the Investment Company Act, except to:
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change the amount
and/or
timing or otherwise adversely affect the method of payment of
any distribution or liquidation amount on the capital securities
or common securities; or
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restrict your right or the right of the common security holder
to institute suit for enforcement of any distribution or
liquidation amount on the capital securities or common
securities.
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The changes described in the two bullet points above require the
approval of each holder of the capital securities affected.
So long as the corresponding junior subordinated debt securities
of a trust are held by the property trustee of that trust, the
trustees shall not:
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direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or executing any trust
or power conferred on the trustee relating to the corresponding
junior subordinated debt securities;
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waive any past default under Section 5.13 of the indenture;
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cancel an acceleration of the principal of the corresponding
junior subordinated debt securities; or
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agree to any change in the indenture or the corresponding junior
subordinated debt securities, where the trustees approval
is required, without obtaining the prior approval of the holders
of at least a majority in the aggregate liquidation amount of
all outstanding related capital securities. However, if the
indenture requires the consent of each holder of corresponding
junior subordinated debt securities that is affected, then the
property trustee must get approval of all holders of capital
securities.
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The trustees cannot change anything previously approved by you
without your approval to make the change. The property trustee
shall notify you of any notice of default relating to the
corresponding junior subordinated debt securities.
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In addition, before taking any of the actions described above,
we must obtain an opinion of counsel experienced in these
matters, addressed to the applicable trustee or trustees,
stating that the trust will continue to be classified as a
grantor trust for U.S. federal income tax purposes.
As described in each trust agreement, the property trustee may
hold a meeting so that you may vote on a change or request that
you approve the change by written consent.
Your vote or consent is not required for the trust to redeem and
cancel its capital securities under the trust agreement.
If your vote is taken or a consent is obtained, any capital
securities that are owned by us, the trustees or any affiliate
of either of us shall, for purposes of the vote or consent, be
treated as if they were not outstanding.
Global
Capital Securities
The capital securities of a series may be issued in whole or in
part in the form of one or more global securities that will be
deposited with, or on behalf of, a depositary identified in the
applicable prospectus supplement. The specific terms of the
depositary arrangements for a series of capital securities will
be described in the applicable prospectus supplement. See
Global Securities.
Payment
and Paying Agents
Payments regarding the capital securities will be made to a
depositary, which will credit the relevant accounts at the
depositary on the applicable distribution dates or, if any
trusts capital securities are not held by a depositary, the
payments will be made by check mailed to the address of the
holder entitled to it at the address listed in the register.
Unless otherwise specified in the applicable prospectus
supplement, the paying agent will initially be the property
trustee. The paying agent will be permitted to resign as paying
agent with 30 days written notice to the property
trustee and to us. If the property trustee is no longer the
paying agent, the administrative trustees will appoint a
successor (which shall be a bank or trust company acceptable to
the administrative trustees and to us) to act as paying agent.
Registrar
and Transfer Agent
Unless otherwise specified in the applicable prospectus
supplement, the property trustee will act as registrar and
transfer agent for the capital securities.
Registration of transfers of capital securities will be effected
without charge by or on behalf of each trust, after payment of
any tax or other governmental charges that are imposed in
connection with any transfer or exchange. No transfers of
capital securities called for redemption will be registered.
Information
About the Property Trustee
The property trustee will perform only those duties that are
specifically stated in each trust agreement. If an event of
default arises under a trust agreement, the property trustee
must use the same degree of care and skill in the exercise of
its duties as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs. The
property trustee is under no obligation to exercise any of the
rights or powers given to it by the applicable trust agreement
at your request unless it is offered security or indemnity
satisfactory to the property trustee against the costs, expenses
and liabilities that it might incur by complying with such
request.
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Miscellaneous
The administrative trustees are authorized and directed to
conduct the affairs of and to operate the trusts in the manner
that:
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no trust will be deemed to be an investment company required to
be registered under the Investment Company Act or to fail to be
classified as a grantor trust for U.S. federal income tax
purposes; and
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the corresponding junior subordinated debt securities will be
treated as our indebtedness for U.S. federal income tax
purposes.
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In this connection, the administrative trustees and us are
authorized to take any action, consistent with applicable law or
the certificate of trust of each trust or each trust agreement,
that we each determine in our discretion to be necessary or
desirable for these purposes.
You have no preemptive or similar rights. A trust may not borrow
money, issue debt or mortgages, or pledge any of its assets.
DESCRIPTION
OF THE GUARANTEES
General
We will execute a guarantee for your benefit at the same time
that a trust issues the capital securities. The guarantee
trustee will hold the guarantee for your benefit. The guarantee
will be qualified as an indenture under the Trust Indenture
Act. The form of guarantee has been filed as an exhibit to the
registration statement.
This section summarizes the material terms and provisions of the
guarantees. Because this is only a summary, it does not contain
all of the details found in the full text of the guarantees. If
you would like additional information you should read the form
of guarantee agreement.
We will irrevocably agree to pay to you in full the following
payments (guarantee payments), to the extent not paid by a
trust, as and when due, regardless of any defense, right of
set-off or counterclaim which the trust may have or assert other
than the defense of payment:
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any accumulated and unpaid distributions required to be paid on
the capital securities, to the extent that the trust has
applicable funds available to make the payment;
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the redemption price and all accrued and unpaid distributions to
the date of redemption on the capital securities called for
redemption, to the extent that the trust has funds available to
make the payment; or
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in the event of a voluntary or involuntary dissolution, winding
up or liquidation of the trust (other than in connection with a
distribution of corresponding junior subordinated debt
securities to you or the redemption of all the related capital
securities), the lesser of:
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the aggregate of the liquidation amount specified in the
applicable prospectus supplement for each capital security plus
all accrued and unpaid distributions on the capital securities
to the date of payment; and
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the amount of assets of the trust remaining available for
distribution to you.
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We can satisfy our obligation to make a guarantee payment by
direct payment to you of the required amounts or by causing the
trust to pay those amounts to the holders.
Each guarantee will be an irrevocable guarantee on a
subordinated basis of the related trusts obligations under
the capital securities, but will apply only to the extent that
the related trust has funds sufficient to make the payments, and
is not a guarantee of collection.
No single document executed by us that is related to the
issuance of the capital securities will provide for our full,
irrevocable and unconditional guarantee of the capital
securities. It is only the combined operation of the applicable
guarantee, the applicable trust agreement, the indenture and the
expense agreement that has the
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effect of providing a full, irrevocable and unconditional
guarantee of the trusts obligations under its capital
securities.
Status of
Guarantees
Each guarantee will constitute an unsecured obligation of ours
and will rank subordinate and junior in right of payment to all
of our senior and subordinated debt securities.
Each guarantee will rank equally with all other guarantees
issued by us. The guarantee will constitute a guarantee of
payment and not of collection (in other words you may sue us, or
seek other remedies, to enforce your rights under the guarantee
without first suing any other person or entity). Each guarantee
will be held for your benefit. Each guarantee will not be
discharged except by payment of the guarantee payments in full
to the extent not previously paid by the trust or upon
distribution to you of the corresponding series of junior
subordinated debt securities. None of the guarantees places a
limitation on the amount of additional senior and subordinated
debt that we may incur. We expect to incur from time to time
additional indebtedness constituting senior and subordinated
debt.
Amendments
and Assignment
Except regarding any changes which do not adversely affect your
rights in any material respect (in which case your consent will
not be required), the guarantee may only be amended with the
prior approval of the holders of at least a majority in
aggregate liquidation amount of the outstanding capital
securities. A description of the manner in which approval may be
obtained is described under Description of the Capital
Securities Voting Rights; Amendment of Each
Trust Agreement. All guarantees and agreements
contained in each guarantee will be binding on our successors,
assigns, receivers, trustees and representatives and shall inure
to the benefit of the holders of the related capital securities
then outstanding.
Events of
Default
An event of default under each guarantee occurs if we fail to
make any of our required payments or perform our obligations
under the guarantee. The holders of at least a majority in
aggregate liquidation amount of the related capital securities
will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
guarantee trustee relating to the guarantee or to direct the
exercise of any trust or power given to the guarantee trustee
under the guarantee.
You may institute a legal proceeding directly against us to
enforce your rights under the guarantee without first
instituting a legal proceeding against the trust, the guarantee
trustee or any other person or entity.
As guarantor, we are required to file annually with the
guarantee trustee a certificate stating whether or not we are in
compliance with all the conditions and covenants applicable to
us under the guarantee.
Information
About the Guarantee Trustee
The guarantee trustee, other than during the occurrence and
continuance of an event of default by us in the performance of
any guarantee, will only perform the duties that are
specifically described in the guarantee. After an event of
default on any guarantee, the guarantee trustee will exercise
the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs.
Subject to this provision, the guarantee trustee is under no
obligation to exercise any of its powers as described in the
guarantee at your request unless it is offered reasonable
indemnity against the costs, expenses and liabilities that it
might incur.
Termination
of Capital Securities Guarantees
Each guarantee will terminate once the related capital
securities are paid in full or upon distribution of the
corresponding series of junior subordinated debt securities to
you. Each guarantee will continue to be effective or will be
reinstated if at any time you are required to restore payment of
any sums paid under the capital securities or the guarantee.
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RELATIONSHIP
AMONG THE CAPITAL SECURITIES, THE CORRESPONDING
JUNIOR SUBORDINATED DEBT SECURITIES AND THE GUARANTEES
Full and
Unconditional Guarantee
Payments of distributions and other amounts due on the capital
securities (to the extent the trust has funds available for the
payments) will be irrevocably guaranteed by us to the extent
described under Description of the Guarantees. No
single document executed by us in connection with the issuance
of the capital securities will provide for our full, irrevocable
and unconditional guarantee of the capital securities. It is
only the combined operation of our obligations under the related
guarantee, the related trust agreement, the corresponding series
of junior subordinated debt securities, the indenture and the
expense agreement that has the effect of providing a full,
irrevocable and unconditional guarantee of the trusts
obligations under the related series of capital securities.
If we do not make payments on any series of corresponding junior
subordinated debt securities, the related trust will not pay
distributions or other amounts on the related capital
securities. The guarantee does not cover payments of
distributions when the related trust does not have sufficient
funds to pay such distributions. If that occurs, your remedy is
to sue us, or seek other remedies, to enforce your rights
without first instituting a legal proceeding against the
guarantee trustee.
Sufficiency
of Payments
As long as we make payments of interest and other payments when
due on each series of corresponding junior subordinated debt
securities, the payments will be sufficient to cover the payment
of distributions and other payments due on the related capital
securities, primarily because:
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the aggregate principal amount of each series of corresponding
junior subordinated debt securities will be equal to the sum of
the aggregate liquidation amount of the related capital
securities and common securities;
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the interest rate and interest and other payment dates on each
series of corresponding junior subordinated debt securities will
match the distribution rate and distribution and other payment
dates for the related capital securities;
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we shall pay for any and all costs, expenses and liabilities of
a trust except the trusts obligations to holders of its
capital securities under the capital securities; and
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each trust agreement provides that the trust will not engage in
any activity that is inconsistent with the limited purposes of
the trust.
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We have the right to set-off any payment we are otherwise
required to make under the indenture with and to the extent we
have made, or are concurrently on the date of the payment
making, a payment under the related guarantee.
Enforcement
Rights of Holders of Capital Securities
You may institute a legal proceeding directly against us to
enforce your rights under the related guarantee without first
instituting a legal proceeding against the guarantee trustee,
the related trust or any other person or entity.
A default or event of default under any of our senior and
subordinated debt securities would not constitute a default or
event of default under the trust agreements. However, in the
event of payment defaults under, or acceleration of, any of our
senior and subordinated debt securities, the subordination
provisions of the indenture provide that no payments will be
made regarding the corresponding junior subordinated debt
securities until the senior and subordinated debt securities
have been paid in full or any payment default on it has been
cured or waived. Failure to make required payments on any series
of corresponding junior subordinated debt securities would
constitute an event of default under the trust agreements.
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Limited
Purpose of Trusts
Each trusts capital securities evidence a beneficial
interest in the respective trust, and each trust exists for the
sole purpose of issuing its capital securities and common
securities and investing the proceeds in corresponding junior
subordinated debt securities. A principal difference between the
rights of a holder of a capital security and a holder of a
corresponding junior subordinated debt security is that a holder
of a corresponding junior subordinated debt security is entitled
to receive from us the principal amount of and interest accrued
on corresponding junior subordinated debt securities held, while
a holder of capital securities is entitled to receive
distributions from the trust (or from us under the applicable
guarantee) if and to the extent the trust has funds available
for the payment of distributions.
Rights
Upon Dissolution
In the event of any voluntary or involuntary dissolution winding
up or liquidation of any trust involving a liquidation of the
corresponding junior subordinated debt securities held by a
trust, you will be entitled to receive, out of assets held by
that trust, the liquidation distribution in cash. See
Description of Capital Securities Liquidation
Distribution Upon Dissolution. In the event of our
voluntary or involuntary liquidation or bankruptcy, the property
trustee, as holder of the corresponding junior subordinated debt
securities, would be a subordinated creditor of ours,
subordinated in right of payment to all senior debt, but
entitled to receive payment in full of principal, premium, if
any, and interest, before any of our common stockholders receive
payments or distributions. Since we are the guarantor under each
guarantee and have agreed to pay for all costs, expenses and
liabilities of each trust (other than the trusts
obligations to you), your position and the position of a holder
of the corresponding junior subordinated debt securities
relative to other creditors and to our stockholders in the event
of our liquidation or bankruptcy are expected to be
substantially the same.
DESCRIPTION
OF COMMON STOCK
We have one class of common stock, the Associated Banc-Corp
common stock. Of the 250,000,000 shares of our common stock
with a par value of $0.01 per share authorized,
127,760,410 shares were outstanding as of November 30,
2008, exclusive of shares held in treasury.
The following summary is not complete. You should refer to the
applicable provision of our Amended and Restated Articles of
Incorporation, as amended, and to the Wisconsin Business
Corporation Law for a complete statement of the terms and rights
of our common stock.
Dividend
Rights
Holders of our common stock are entitled to receive dividends
when, as, and if declared by our board of directors out of our
assets legally available for payment, subject to the rights of
holders of our preferred stock. No share of our common stock is
entitled to any preferential treatment with respect to dividends.
We have sold 525,000 shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series A (the Senior
Preferred Stock), to the United States Department of the
Treasury pursuant to the Capital Purchase Plan under the
Troubled Asset Relief Program. While any Senior Preferred Stock
is outstanding, we may pay dividends on our common stock,
provided that all accrued and unpaid dividends for all past
dividend periods on the Senior Preferred Stock are fully paid.
Prior to the third anniversary of the United States Department
of the Treasurys purchase of the Senior Preferred Stock,
unless the Senior Preferred Stock has been redeemed or the
United States Department of the Treasury has transferred all of
the Senior Preferred Stock to third parties, the consent of the
United States Department of the Treasury will be required for us
to increase our common stock dividend from its current quarterly
amount of $0.32 per share.
Furthermore, under our Amended and Restated Articles of
Incorporation, as amended, our ability to declare or pay
dividends will be subject to restrictions in the event that we
fail to declare and pay (or set aside for payment) full
dividends on the Senior Preferred Stock.
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Voting
Rights
Each holder of our common stock will be entitled at each
stockholders meeting, with regard to each matter to be voted on,
to cast one vote, in person or by proxy, for each share of our
common stock registered in his or her name on our stock transfer
books. Subject to the rights, if any, of the holders of any
series of preferred stock under their respective certificates of
designations and applicable law, all voting rights are vested in
the holders of shares of our common stock. Voting rights are not
cumulative, which means that holders of more than 50% of the
shares voting for the election of directors can elect 100% of
the directors, and the holders of the remaining shares will not
be able to elect any directors.
Rights
Upon Liquidation
Subject to the rights of holders of any of our preferred stock
which may be issued from time to time, in the event of our
liquidation, dissolution or winding up, whether voluntary or
involuntary, the holders of our common stock will be entitled to
receive all of our assets remaining for distribution to our
stockholders, on a pro rata basis.
Miscellaneous
Shares of our common stock are not convertible into shares of
any other class of capital stock. Shares of our common stock are
not and will not be entitled to any preemptive or subscription
rights. The issued and outstanding shares of our common stock
are fully paid and nonassessable. The transfer agent, registrar,
and dividend disbursement agent for our common stock shall be
named in the applicable prospectus supplement.
DESCRIPTION
OF PREFERRED STOCK
Under our Amended and Restated Articles of Incorporation, as
amended, our board of directors is authorized, without further
stockholder action, to issue up to 750,000 shares of
preferred stock, $1.00 par value per share, in one or more
series, and to determine the voting powers and the designations,
preferences, and relative, participating, optional, or other
special rights, and the qualifications, limitations, or
restrictions of each series. As of November 30, 2008,
525,000 shares of our Senior Preferred Stock was issued and
outstanding. We may amend our Amended and Restated Articles of
Incorporation, as amended, to increase the number of authorized
shares of preferred stock in a manner permitted by our Amended
and Restated Articles of Incorporation and the Wisconsin
Business Corporation Law.
Under regulations adopted by the Federal Reserve Board, if the
holders of any series of our preferred stock become entitled to
vote for the election of directors because dividends on that
series are in arrears, that series may then be deemed a
class of voting securities. In such a case, a holder
of 25% or more of the series, or a holder of 5% or more if that
holder would also be considered to exercise a controlling
influence over Associated Banc-Corp, may then be subject
to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956. In addition, (1) any
other bank holding company may be required to obtain the prior
approval of the Federal Reserve Board to acquire or retain 5% or
more of that series, and (2) any person other than a bank
holding company may be required to obtain the approval of the
Federal Reserve Board to acquire or retain 10% or more of that
series.
We will describe the particular terms of any series of preferred
stock being offered in the prospectus supplement relating to
that series of preferred stock. Those terms may include:
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the number of shares being offered;
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the title and liquidation preference per share;
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the purchase price;
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the dividend rate or method for determining that rate;
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the dates on which dividends will be paid;
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whether dividends will be cumulative or noncumulative and, if
cumulative, the dates from which dividends will begin to
accumulate;
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any applicable redemption or sinking fund provisions;
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any applicable conversion provisions;
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whether we have elected to offer depositary shares with respect
to that series of preferred stock; and
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any additional dividend, liquidation, redemption, sinking fund,
and other rights and restrictions applicable to that series of
preferred stock.
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If the terms of any series of preferred stock being offered
differ from the terms set forth below, we will also disclose
those terms in the prospectus supplement relating to that series
of preferred stock. The following summary is not complete. You
should also refer to our Amended and Restated Articles of
Incorporation, as amended, and to our Articles of Amendment
relating to the series of the preferred stock being offered for
the complete terms of that series of preferred stock. Our
Amended and Restated Articles of Incorporation was filed as an
exhibit to our Quarterly Report on
Form 10-Q
filed on May 8, 2006. Our Amendment to the Amended and
Restated Articles of Incorporation in connection with the
designation of our Senior Preferred Stock was filed as an
exhibit to our Current Report on
Form 8-K
filed on November 21, 2008. We will file the certificate of
designations with the SEC promptly after the offering of the
applicable series of preferred stock.
The preferred stock will, when issued, be fully paid and
nonassessable. Unless otherwise specified in the applicable
prospectus supplement, in the event we liquidate, dissolve, or
wind up our business, each series of preferred stock being
offered will have the same rank as to dividends and
distributions as each other series of preferred stock we may
offer in the future by use of this prospectus and will rank
senior as to dividends and distributions to all classes of
common stock. The preferred stock will have no preemptive rights.
Dividend
Rights
If you purchase preferred stock being offered by use of this
prospectus and an applicable prospectus supplement, you will be
entitled to receive, when, as, and if declared by our board of
directors, cash dividends at the rates and on the dates set
forth in the prospectus supplement. Dividend rates may be fixed
or variable or both. Different series of preferred stock may be
entitled to dividends at different dividend rates or based upon
different methods of determination. We will pay each dividend to
the holders of record as they appear on our stock books (or, if
applicable, the records of the depositary referred to below
under Depositary Shares) on record dates determined
by the board of directors. Dividends on any series of preferred
stock may be cumulative or noncumulative, as specified in the
prospectus supplement. If our board of directors fails to
declare a dividend on any series of preferred stock for which
dividends are noncumulative, then your right to receive that
dividend will be lost, and we will have no obligation to pay the
dividend for that dividend period, whether or not we declare
dividends for any future dividend period.
We may not declare or pay any dividend on any series of
preferred stock, unless, for the dividend period commencing
after the immediately preceding dividend payment date, we have
previously declared and paid or we contemporaneously declare and
pay full dividends, including cumulative dividends still owing,
if any, on any other series of preferred stock that ranks
equally with or senior to that series of preferred stock. If we
do not pay the dividends on those equally and senior ranking
series in full, we may only declare dividends pro rata, so that
the amount of dividends declared per share on that series of
preferred stock and on each other equally or senior ranking
series of preferred stock will bear to each other the same ratio
that accrued dividends per share on that series of preferred
stock and those other series bear to each other. In addition,
generally, unless we have paid full dividends, including
cumulative dividends still owing, if any, on all outstanding
shares of any series of preferred stock, we may not declare or
pay dividends on our common stock, and generally we may not
redeem or purchase any common stock. We will not pay interest or
any sum of money in lieu of interest on any dividend payment or
payments that may be in arrears on any series of preferred stock
being offered.
For each dividend period of preferred stock being offered by use
of this prospectus and an applicable prospectus supplement, we
will compute the amount of dividends payable by annualizing the
applicable
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dividend rate and dividing by the number of dividend periods in
a year, except that the amount of dividends payable for the
initial dividend period or any period shorter than a full
dividend period will be computed on the basis of a
360-day year
consisting of twelve
30-day
months and, for any period less than a full month, the actual
number of days elapsed in the period.
Rights
upon Liquidation
In the event that we liquidate, dissolve, or
wind-up our
affairs, either voluntarily or involuntarily, you will be
entitled to receive liquidating distributions in the amount set
forth in the applicable prospectus supplement, plus accrued and
unpaid dividends, if any, before we make any distribution of
assets to the holders of our common stock. If we fail to pay in
full all amounts payable with respect to preferred stock being
offered by us and any stock having the same rank as that series
of preferred stock, the holders of the preferred stock and of
that other stock will share in any distribution of assets in
proportion to the full respective preferential amounts to which
they are entitled. After the holders of each series of preferred
stock and any stock having the same rank as the preferred stock
are paid in full, they will have no right or claim to any of our
remaining assets. For any series of preferred stock being
offered by this prospectus and an applicable prospectus
supplement, neither the sale of all or substantially all of our
property or business nor a merger or consolidation by us with
any other corporation will be considered a dissolution,
liquidation, or
winding-up
of our business or affairs.
Redemption
The applicable prospectus supplement will indicate whether the
series of preferred stock being offered is subject to
redemption, in whole or in part, whether at our option or
mandatorily and whether or not pursuant to a sinking fund. The
redemption provisions that may apply to a series of preferred
stock being offered, including the redemption dates, the
redemption prices for that series, and whether those redemption
prices will be paid in cash, stock, or a combination of cash and
stock, will be set forth in the prospectus supplement. If the
redemption price is to be paid only from the proceeds of the
sale of our capital stock, the terms of the series of preferred
stock may also provide that, if our capital stock is not sold or
if the amount of cash received is insufficient to pay in full
the redemption price then due, the series of preferred stock
will automatically be converted into shares of the applicable
capital stock pursuant to conversion provisions specified in the
prospectus supplement.
If we are redeeming fewer than all the outstanding shares of any
series of preferred stock being offered, whether by mandatory or
optional redemption, the board of directors will determine the
method for selecting the shares to be redeemed, which may be by
lot or pro rata or by any other method the board of directors
determines to be equitable. From and after the redemption date,
dividends will cease to accrue on the shares of preferred stock
called for redemption, and all rights of the holders of those
shares, except the right to receive the redemption price, will
cease.
In the event that we fail to pay full dividends, including
accrued but unpaid dividends, if any, on any series of preferred
stock being offered, we may not redeem that series in part, and
we may not purchase or acquire any shares of that series of
preferred stock, except by an offer made on the same terms to
all holders of that series of preferred stock.
Conversion
Rights
The applicable prospectus supplement will state the terms, if
any, on which shares of a series of preferred stock being
offered are convertible into shares of our common stock or
another series of our preferred stock. As described under
Redemption above, under certain circumstances,
preferred stock may be mandatorily convertible into our common
stock or another series of our preferred stock.
Voting
Rights
Except as indicated below or in the prospectus supplement, or
except as expressly required by applicable law, the holders of
the preferred stock being offered will not be entitled to vote.
Except as indicated in the applicable prospectus supplement, in
the event we offer full shares of any series of preferred stock,
each share will be entitled to one vote on matters on which
holders of that series of preferred stock are entitled to vote.
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As more fully described below under Description of
Depositary Shares, however, if we use this prospectus to
offer depositary shares representing a fraction of a share of a
series of preferred stock, each depositary share, in effect,
will be entitled to that fraction of a vote, rather than a full
vote. Because each full share of any series of preferred stock
being offered will be entitled to one vote, the voting power of
that series will depend on the number of shares in that series,
and not on the aggregate liquidation preference or initial
offering price of the shares of that series of preferred stock.
Fixed
Rate Cumulative Perpetual Preferred Stock
As of November 30, 2008, we have 525,000 shares of our
Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
issued and outstanding. The shares of the Senior Preferred Stock
were sold to the United States Department of the Treasury
pursuant to the Capital Purchase Program under the Troubled
Asset Relief Program. The following is a brief description of
the terms of the Senior Preferred Stock that may be resold by
the United States Department of the Treasury under this
registration statement. This summary does not purport to be
complete in all respects. This description is subject to and
qualified in its entirety by reference to our Amended and
Restated Articles of Incorporation, as amended, including the
Articles of Amendment with respect to the designation of the
Senior Preferred Stock, copies of which are incorporated by
reference to the registration statement of which this prospectus
is a part and are also available upon request from us.
Dividends Payable on Shares of Senior Preferred
Stock. The Senior Preferred Stock provides for
cumulative compounding dividends quarterly in arrears of 5% per
year until the fifth anniversary of the issuance of the Senior
Preferred Stock, and 9% thereafter. The dividend payment dates
will be February 15, May 15, August 15 and November 15
beginning with the first dividend payment date to occur at least
20 calendar days after the issuance of the Senior Preferred
Stock. The Senior Preferred Stock was issued to the United
States Department of the Treasury on November 21, 2008.
Accordingly, the first dividend payment date will be
February 15, 2009. Dividends payable during any dividend
period are computed on the basis of a
360-day year
consisting of twelve
30-day
months. Dividends payable with respect to the Senior Preferred
Stock are payable to holders of record of shares of Senior
Preferred Stock on the date that is 15 calendar days immediately
preceding the applicable dividend payment date or such other
record date as the board of directors or any duly authorized
Committee of the board determines, so long as such record date
is not more than 60 nor less than 10 days prior to the
applicable dividend payment date.
If we determine not to pay any dividend or to pay a partial
dividend with respect to the Senior Preferred Stock, we are
required to provide written notice to the holders of shares of
Senior Preferred Stock prior to the applicable dividend payment
date.
We are subject to various regulatory policies and requirements
relating to the payment of dividends, including requirements to
maintain adequate capital above regulatory minimums. The Board
of Governors of the Federal Reserve System, or the Federal
Reserve Board, is authorized to determine, under certain
circumstances relating to the financial condition of a bank
holding company, such as us, that the payment of dividends would
be an unsafe or unsound practice and to prohibit payment
thereof. In addition, we are subject to provisions of the
Wisconsin Business Corporation Law relating to the payment of
dividends.
Priority of Dividends. With respect to the
payment of dividends and the amounts to be paid upon
liquidation, the Senior Preferred Stock will rank:
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senior to our common stock and all other equity securities
designated as ranking junior to the Senior Preferred
Stock; and
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at least equally with all other equity securities designated as
ranking on a parity with the Senior Preferred Stock with respect
to the payment of dividends and distribution of assets upon any
liquidation, dissolution or
winding-up
of the Company.
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So long as any shares of Senior Preferred Stock remain
outstanding, unless all accrued and unpaid dividends for all
prior dividend periods have been paid or are contemporaneously
declared and paid in full, no dividend whatsoever shall be paid
or declared on our common stock or other junior stock, other
than a dividend payable solely in shares of our common stock. We
also may not purchase, redeem or otherwise
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acquire for consideration any shares of our common stock, or as
applicable, any other class or series of Company stock ranking
junior to the Senior Preferred Stock, which we refer to as
junior stock, unless we have paid in full all
accrued dividends on the Senior Preferred Stock for all prior
dividend periods, other than:
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purchases, redemptions or other acquisitions of our common stock
or other junior stock in connection with the administration of
our employee benefit plans in the ordinary course of business
pursuant to a publicly announced repurchase plan up to the
increase in diluted shares outstanding resulting from the grant,
vesting or exercise of equity-based compensation;
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purchases or other acquisitions by broker-dealer subsidiaries
solely for the purpose of market-making, stabilization or
customer facilitation transactions in junior stock, as
applicable, any class or series of Company stock that does not
expressly rank junior or senior to the Senior Preferred Stock,
which we refer to as parity stock, in the ordinary
course of its business;
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purchases or other acquisitions by broker-dealer subsidiaries of
for resale pursuant to an offering by us of our stock that is
underwritten by the related broker-dealer subsidiary;
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any dividends or distributions of rights or junior stock in
connection with any shareholders rights plan or
repurchases of rights pursuant to any shareholders rights
plan;
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acquisition of record ownership of junior stock or parity stock
for the beneficial ownership of any other person who is not us
or our subsidiary, including as trustee or custodian; and
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the exchange or conversion of junior stock for or into other
junior stock or of parity stock for or into other parity stock
or junior stock but only to the extent that such acquisition is
required pursuant to binding contractual agreements entered into
before November 21, 2008 or any subsequent agreement for
the accelerated exercise, settlement or exchange thereof for
common stock.
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If we repurchase shares of Senior Preferred Stock from a holder
other than the United States Department of the Treasury, we must
offer to repurchase a ratable portion of the Senior Preferred
Stock then held by the United States Department of the Treasury.
On any dividend payment date for which full dividends are not
paid, or declared and funds set aside therefor, on the Senior
Preferred Stock and any other parity stock, all dividends paid
or declared for payment on that dividend payment date (or, with
respect to parity stock with a different dividend payment date,
on the applicable dividend date therefor falling within the
dividend period and related to the dividend payment date for the
Senior Preferred Stock), with respect to the Senior Preferred
Stock and any other parity stock shall be declared ratably among
the holders of any such shares who have the right to receive
dividends, in proportion to the respective amounts of the
undeclared and unpaid dividends relating to the dividend period.
Subject to the foregoing, such dividends (payable in cash, stock
or otherwise) as may be determined by our board of directors (or
a duly authorized committee of the board) may be declared and
paid on our common stock and any other stock ranking equally
with or junior to the Senior Preferred Stock from time to time
out of any funds legally available for such payment, and the
Senior Preferred Stock will not be entitled to participate in
any such dividend. However, prior to the earlier of
November 21, 2011 and the date on which the Senior
Preferred Stock has been redeemed in full or transferred by the
United States Department of the Treasury, we must obtain the
consent of the United States Department of the Treasury to
declare or pay dividends on our common stock in an amount
greater than $0.32 per share, which was the amount of the
quarterly cash dividend per share declared immediately prior to
our approval to participate in the Capital Purchase Program
under the Troubled Asset Relief Program.
Redemption. The Senior Preferred Stock may not
be redeemed prior to November 22, 2011 unless we have
received aggregate gross proceeds from one or more Qualified
Equity Offerings (as defined below) of at least $131,250,000,
which equals 25% of the aggregate liquidation amount of the
Senior Preferred Stock on the date of issuance. In such a case,
we may redeem the Senior Preferred Stock, subject to the
approval of the Federal Reserve Board, in whole or in part, upon
notice as described below, up to a maximum amount equal to the
aggregate net cash proceeds received by us from such qualified
equity offerings. A Qualified Equity Offering is a
sale and issuance for cash by us, to persons other than us or
our subsidiaries after November 21, 2008, of shares of
perpetual preferred stock, common stock or a combination
thereof, that in each case qualify
42
as tier 1 capital of the Company at the time of issuance
under the applicable risk-based capital guidelines of the
Federal Reserve Board. Qualified Equity Offerings do not include
issuances made in connection with acquisitions, issuances of
trust preferred securities and issuances of common stock
and/or
perpetual preferred stock made pursuant to agreements or
arrangements entered into, or pursuant to financing plans that
were publicly announced, on or prior to October 13, 2008.
After November 22, 2011, the Senior Preferred Stock may be
redeemed at any time, subject to the approval of the Federal
Reserve Board, in whole or in part, subject to notice as
described below.
In any redemption, the redemption price is an amount equal to
the per share liquidation amount plus accrued and unpaid
dividends to but excluding the date of redemption.
The Senior Preferred Stock will not be subject to any mandatory
redemption, sinking fund or similar provisions. Holders of
shares of Senior Preferred Stock have no right to require the
redemption or repurchase of the Senior Preferred Stock.
If fewer than all of the outstanding shares of Senior Preferred
Stock are to be redeemed, the shares to be redeemed will be
selected either pro rata from the holders of record of shares of
Senior Preferred Stock in proportion to the number of shares
held by those holders or in such other manner as our board of
directors or a committee thereof may determine to be fair and
equitable.
We will mail notice of any redemption of Senior Preferred Stock
by first class mail, postage prepaid, addressed to the holders
of record of the shares of Senior Preferred Stock to be redeemed
at their respective last addresses appearing on our books. This
mailing will be at least 30 days and not more than
60 days before the date fixed for redemption. Any notice
mailed or otherwise given as described in this paragraph will be
conclusively presumed to have been duly given, whether or not
the holder receives the notice, and failure duly to give the
notice by mail or otherwise, or any defect in the notice or in
the mailing or provision of the notice, to any holder of Senior
Preferred Stock designated for redemption will not affect the
redemption of any other Senior Preferred Stock. Each notice of
redemption will set forth the applicable redemption date, the
redemption price, the place where shares of Senior Preferred
Stock are to be redeemed, and the number of shares of Senior
Preferred Stock to be redeemed (and, if less than all shares of
Senior Preferred Stock held by the applicable holder, the number
of shares to be redeemed from the holder).
Shares of Senior Preferred Stock that are redeemed, repurchased
or otherwise acquired by us will revert to authorized but
unissued shares of our preferred stock.
Liquidation Rights. In the event that we
voluntarily or involuntarily liquidate, dissolve or wind up our
affairs, holders of Senior Preferred Stock will be entitled to
receive an amount per share, referred to as the total
liquidation amount, equal to the fixed liquidation preference of
$1,000 per share, plus any accrued and unpaid dividends, whether
or not declared, to the date of payment. Holders of the Senior
Preferred Stock will be entitled to receive the total
liquidation amount out of our assets that are available for
distribution to shareholders, after payment or provision for
payment of our debts and other liabilities but before any
distribution of assets is made to holders of our common stock or
any other shares ranking, as to that distribution, junior to the
Senior Preferred Stock.
If our assets are not sufficient to pay the total liquidation
amount in full to all holders of Senior Preferred Stock and all
holders of any shares of outstanding parity stock, the amounts
paid to the holders of Senior Preferred Stock and other shares
of parity stock will be paid pro rata in accordance with the
respective total liquidation amount for those holders. If the
total liquidation amount per share of Senior Preferred Stock has
been paid in full to all holders of Senior Preferred Stock and
other shares of parity stock, the holders of our common stock or
any other shares ranking, as to such distribution, junior to the
Senior Preferred Stock will be entitled to receive all of our
remaining assets according to their respective rights and
preferences.
For purposes of the liquidation rights, neither the sale,
conveyance, exchange or transfer of all or substantially all of
our property and assets, nor the consolidation or merger by us
with or into any other corporation or by another corporation
with or into us, will constitute a liquidation, dissolution or
winding-up
of our affairs.
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Voting Rights. Except as indicated below or
otherwise required by law, the holders of Senior Preferred Stock
will not have any voting rights.
Election of Two Directors upon Non-Payment of Dividends. If the
dividends on the Senior Preferred Stock have not been paid for
an aggregate of six quarterly dividend periods or more (whether
or not consecutive), the authorized number of directors then
constituting our board of directors will be increased by two.
Holders of Senior Preferred Stock, together with the holders of
any outstanding parity stock with like voting rights, referred
to as voting parity stock, voting as a single class, will be
entitled to elect the two additional members of our board of
directors, referred to as the preferred stock directors, at the
next annual meeting (or at a special meeting called for the
purpose of electing the preferred stock directors prior to the
next annual meeting) and at each subsequent annual meeting until
all accrued and unpaid dividends for all past dividend periods
have been paid in full. The election of any preferred stock
director is subject to the qualification that the election would
not cause us to violate the corporate governance requirement of
the Nasdaq Global Select Market (or any other exchange on which
our securities may be listed) that listed companies must have a
majority of independent directors.
Upon the termination of the right of the holders of Senior
Preferred Stock and voting parity stock to vote for preferred
stock directors, as described above, the preferred stock
directors will immediately cease to be qualified as directors,
their term of office will terminate immediately and the number
of our authorized directors will be reduced by two. The holders
of a majority of shares of Senior Preferred Stock and voting
parity stock, voting as a class, may remove any preferred stock
director, with or without cause, and the holders of a majority
of the shares Senior Preferred Stock and voting parity stock,
voting as a class, may fill any vacancy created by the removal
of a preferred stock director. If the office of a preferred
stock director becomes vacant for any other reason, the
remaining preferred stock director may choose a successor to
fill such vacancy for the remainder of the unexpired term.
Other Voting Rights. So long as any shares of
Senior Preferred Stock are outstanding, in addition to any other
vote or consent of shareholders required by law or by our
Amended and Restated Articles of Incorporation, as amended, the
vote or consent of the holders of at least
662/3%
of the shares of Senior Preferred Stock at the time outstanding,
voting separately as a single class, given in person or by
proxy, either in writing without a meeting or by vote at any
meeting called for the purpose, shall be necessary for effecting
or validating:
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any amendment or alteration of our Amended and Restated Articles
of Incorporation, as amended, to authorize or create or increase
the authorized amount of, or any issuance of, any shares of, or
any securities convertible into or exchangeable or exercisable
for shares of, any class or series of capital stock ranking
senior to the Senior Preferred Stock with respect to payment of
dividends
and/or
distribution of assets on any liquidation, dissolution or
winding up of the Company;
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any amendment, alteration or repeal of any provision of our
Amended and Restated Articles of Incorporation, as amended, so
as to adversely affect the rights, preferences, privileges or
voting powers of the Senior Preferred Stock; or
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any consummation of a binding share exchange or reclassification
involving the Senior Preferred Stock or of a merger or
consolidation of the Company with another entity, unless the
shares of Senior Preferred Stock remain outstanding following
any such transaction or, if we are not the surviving entity, are
converted into or exchanged for preference securities and such
remaining outstanding shares of Senior Preferred Stock or
preference securities have rights, references, privileges and
voting powers that are not materially less favorable than the
rights, preferences, privileges or voting powers of the Senior
Preferred Stock, taken as a whole.
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The foregoing voting provisions will not apply if, at or prior
to the time when the vote or consent would otherwise be
required, all outstanding shares of Senior Preferred Stock have
been redeemed or called for redemption upon proper notice and
sufficient funds have been set aside by us for the benefit of
the holders of Senior Preferred Stock to effect the redemption.
44
DESCRIPTION
OF DEPOSITARY SHARES
This section describes the general terms and provisions of the
depositary shares. The prospectus supplement will describe the
specific terms of the depositary shares offered through that
prospectus supplement. The specific terms may differ from the
general description of terms described below.
The following summary of the deposit agreement, the depositary
shares, and the depositary receipts is not complete. We will
file the forms of the deposit agreement and depositary receipts
with the SEC promptly after the offering of the depositary
shares. You should read the forms of deposit agreement and
depositary receipt relating to a series of preferred stock for
additional information before you buy any depositary shares that
represent preferred stock of that series.
General
We may offer fractional interests in preferred stock, rather
than full shares of preferred stock. If we do, we will provide
for the issuance by a depositary to the public of receipts for
depositary shares, each of which will represent a fractional
interest in a share of a particular series of preferred stock.
The shares of any series of preferred stock underlying the
depositary shares will be deposited under a separate deposit
agreement between us and a bank or trust company having its
principal office in the U.S. and having a combined capital
and surplus of at least $50 million, which we refer to in
this prospectus as the depositary. We will name the depositary
in the applicable prospectus supplement. Subject to the terms of
the deposit agreement, each owner of a depositary share will
have a fractional interest in all the rights and preferences of
the preferred stock underlying the depositary share. Those
rights include any dividend, voting, redemption, conversion,
exchange, and liquidation rights.
The depositary shares will be evidenced by depositary receipts
issued under the deposit agreement. If you purchase fractional
interests in shares of the related series of preferred stock,
you will receive depositary receipts as described in the
applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the depositary to
issue temporary depositary receipts substantially identical to
the final depositary receipts although not in final form. The
holders of the temporary depositary receipts will be entitled to
the same rights as if they held the depositary receipts in final
form. Holders of the temporary depositary receipts can exchange
them for the final depositary receipts at our expense.
Unless we specify otherwise in the applicable prospectus
supplement, you will not be entitled to receive the whole shares
of preferred stock underlying the depositary shares.
When appropriate, the applicable prospectus supplement will
describe the U.S. federal income tax considerations
relevant to the depositary shares.
Dividends
and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to
the record holders of depositary shares representing the shares
of preferred stock. These distributions will be in proportion to
the number of depositary shares owned by the holders on the
relevant record date. The depositary will not distribute amounts
less than one cent. The depositary will distribute any balance
with the next sum received for distribution to record holders of
depositary shares.
If there is a distribution other than in cash, the depositary
will distribute property to the holders of depositary shares,
unless the depositary determines that it is not feasible to make
the distribution. If this occurs, the depositary may, with our
approval, sell the property and distribute the net proceeds from
the sale to the holders of depositary shares.
The deposit agreement will also contain provisions relating to
how any subscription or similar rights offered by us to holders
of the preferred stock will be made available to the holders of
depositary shares.
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Conversion
and Exchange
If any series of preferred stock underlying the depositary
shares is subject to conversion or exchange, the applicable
prospectus supplement will describe the rights or obligations of
each record holder of depositary receipts to convert or exchange
the depositary shares.
Redemption
of Depositary Shares
If the series of the preferred stock underlying the depositary
shares is subject to redemption, all or a part of the depositary
shares will be redeemed from the redemption proceeds of that
series of the preferred stock held by the depositary. The
depositary will mail notice of redemption between 30 to
60 days prior to the date fixed for redemption to the
record holders of the depositary shares to be redeemed at their
addresses appearing in the depositarys records. The
redemption price per depositary share will bear the same
relationship to the redemption price per share of preferred
stock that the depositary share bears to the underlying
preferred stock. Whenever we redeem preferred stock held by the
depositary, the depositary will redeem, as of the same
redemption date, the number of depositary shares representing
the preferred stock redeemed. If less than all the depositary
shares are to be redeemed, the depositary shares to be redeemed
will be selected by lot or pro rata as determined by the
depositary.
After the date fixed for redemption, the depositary shares
called for redemption will no longer be outstanding. When the
depositary shares are no longer outstanding, all rights of the
holders will cease, except the right to receive money or other
property that the holders of the depositary shares were entitled
to receive upon the redemption. Payments will be made when
holders surrender their depositary receipts to the depositary.
Voting
Preferred Stock
When the depositary receives notice of any meeting at which the
holders of the preferred stock may vote, the depositary will
mail information about the meeting contained in the notice, and
any accompanying proxy materials, to the record holders of the
depositary shares relating to the preferred stock. Each record
holder of such depositary shares on the record date, which will
be the same date as the record date for the preferred stock,
will be entitled to instruct the depositary with regard to how
the preferred stock underlying the holders depositary
shares should be voted.
The depositary will try, if practical, to vote the number of
shares of preferred stock underlying the depositary shares
according to the instructions received. We will agree to take
all action requested by and deemed necessary by the depositary
to enable the depositary to vote the preferred stock in that
manner. The depositary will not vote any preferred stock for
which it does not receive specific instructions from the holders
of the depositary shares relating to such preferred stock,
unless otherwise indicated in the applicable prospectus
supplement.
Amendment
and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares
and any provision of the deposit agreement may be amended by
agreement between us and the depositary at any time. Any
amendment that materially and adversely alters the rights of the
existing holders of depositary shares, however, will be
effective only if approved by the record holders of at least a
majority of the depositary shares then outstanding. A deposit
agreement may be terminated by us or the depositary only if:
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all outstanding depositary shares relating to the deposit
agreement have been redeemed or reacquired by us;
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all preferred stock of the relevant series has been
withdrawn; or
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there has been a final distribution on the preferred stock of
the relevant series in connection with our liquidation,
dissolution, or
winding-up
of our business and the distribution has been distributed to the
holders of the related depositary shares.
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Charges
of Depositary
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary
arrangements. We will pay associated charges of the depositary
for the initial deposit of the preferred stock and any
redemption of the preferred stock. Holders of depositary shares
will pay transfer and other taxes and governmental charges and
any other charges that are stated to be their responsibility
under the deposit agreement.
Miscellaneous
We will forward to the depositary, for distribution to the
holders of depositary shares, all reports and communications
that we must furnish to the holders of the preferred stock.
If the depositary is prevented or delayed by law or any
circumstance beyond its control in performing its obligations
under the deposit agreement, neither the depositary nor we will
be liable. Our obligations and the depositarys obligations
under the deposit agreement will be limited to performance in
good faith of duties set forth in the deposit agreement. Neither
the depositary nor we will be obligated to prosecute or defend
any legal proceeding connected with any depositary shares or
preferred stock unless satisfactory indemnity is furnished to us
and/or the
depositary. We and the depositary may rely upon documents
believed to be genuine, written advice of counsel or
accountants, or information provided by persons presenting
preferred stock for deposit, holders of depositary shares or
other persons believed to be competent.
Resignation
and Removal of Depositary
The depositary may resign at any time by delivering notice to
us. We may also remove the depositary at any time. Resignations
or removals will take effect when a successor depositary is
appointed and it accepts the appointment. The successor
depositary must be appointed within 60 days after delivery
of the notice of resignation or removal and must be a bank or
trust company having its principal office in the U.S., and it
must have a combined capital and surplus of at least
$50 million.
DESCRIPTION
OF WARRANTS
This section describes the general terms and provisions of the
warrants. The prospectus supplement will describe the specific
terms of the warrants offered through that prospectus
supplement, and any general terms outlined in this section that
will not apply to those warrants.
We may issue warrants for the purchase of debt securities,
preferred stock, depositary shares, or common stock. Warrants
may be issued alone or together with securities offered by any
prospectus supplement and may be attached to or separate from
those securities. Each series of warrants will be issued under a
separate warrant agreement between us and a bank or trust
company, as warrant agent, which will be described in the
applicable prospectus supplement. The warrant agent will act
solely as our agent in connection with the warrants and will not
act as an agent or trustee for any holders of warrants.
In this section, we have summarized the material terms and
provisions of the warrant agreements and warrants. We have also
filed the forms of warrant agreements and the certificates
representing the warrants as exhibits to the registration
statement of which this prospectus is a part. You should read
the applicable forms of warrant agreement and warrant
certificate for additional information before you buy any
warrants.
General
If warrants for the purchase of debt securities are offered, the
applicable prospectus supplement will describe the terms of
those warrants, including the following, if applicable:
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the offering price;
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the currencies in which the warrants are being offered;
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the designation, aggregate principal amount, currencies,
denominations, and terms of the series of the debt securities
that can be purchased if a holder exercises the warrants;
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the designation and terms of any series of debt securities,
preferred stock, depositary shares, or other securities with
which the warrants are being offered and the number of warrants
offered with each debt security, share of preferred stock,
depositary share, or other security;
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the date on and after which the holder of the warrants can
transfer them separately from the related securities;
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the principal amount of the series of debt securities that can
be purchased if a holder exercises the warrant and the price at
which and currencies in which the principal amount may be
purchased upon exercise;
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the date on which the right to exercise the warrants begins and
the date on which the right expires;
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whether the warrants will be in registered or bearer form;
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U.S. federal income tax consequences; and
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any other terms of the warrants.
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If warrants for the purchase of preferred stock, depositary
shares or common stock are offered, the applicable prospectus
supplement will describe the terms of those warrants, including
the following where applicable:
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the offering price;
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the total number of shares that can be purchased if a holder of
the warrants exercises them and, in the case of warrants for
preferred stock or depositary shares, the designation, total
number, and terms of the series of preferred stock that can be
purchased upon exercise or that are underlying the depositary
shares that can be purchased upon exercise;
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the designation and terms of the series of debt securities,
preferred stock, depositary shares, or other securities with
which the warrants are being offered and the number of warrants
being offered with each debt security, share of preferred stock,
depositary share, or other security;
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the date on and after which the holder of the warrants can
transfer them separately from the related securities;
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the number of shares of preferred stock, depositary shares, or
shares of common stock that can be purchased if a holder
exercises the warrant and the price at which the preferred
stock, depositary shares, or common stock may be purchased upon
each exercise;
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the date on which the right to exercise the warrants begins and
the date on which the right expires;
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U.S. federal income tax consequences; and
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any other terms of the warrants.
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Unless we state otherwise in the applicable prospectus
supplement, the warrants will be in registered form only.
A holder of warrant certificates may exchange them for new
certificates of different denominations, present them for
registration of transfer, and exercise them at the corporate
trust office of the warrant agent or any other office indicated
in the applicable prospectus supplement.
Until any warrants to purchase debt securities are exercised,
the holder of such warrants will not have any of the rights of
holders of the debt securities that can be purchased upon
exercise, including any right to receive payments of principal,
premium, or interest on the underlying debt securities or to
enforce covenants in the applicable indenture. Until any
warrants to purchase preferred stock, depositary shares, common
stock, or other securities are exercised, holders of such
warrants will not have any rights of holders of the underlying
preferred stock, depositary shares, common stock, or other
securities, including any right to receive dividends or to
exercise any voting rights.
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Exercise
of Warrants
Each holder of a warrant is entitled to purchase the principal
amount of debt securities or number of shares of preferred
stock, depositary shares, or shares of common stock, as the case
may be, at the exercise price described in the applicable
prospectus supplement. After the close of business on the day
when the right to exercise terminates, or a later date if we
extend the time for exercise, unexercised warrants will become
void.
A holder of warrants may exercise them by following the general
procedure outlined below:
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delivering to the warrant agent the payment required by the
applicable prospectus supplement to purchase the underlying
security;
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properly completing and signing the reverse side of the warrant
certificate representing the warrants; and
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delivering the warrant certificate representing the warrants to
the warrant agent, or other office indicated in the applicable
prospectus supplement, within five business days of the warrant
agent receiving payment of the exercise price.
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If you comply with the procedures described above, your warrants
will be considered to have been exercised when the warrant agent
receives payment of the exercise price. After you have completed
those procedures, we will, as soon as practicable, issue and
deliver to you the debt securities, preferred stock, depositary
shares, or common stock that you purchased upon exercise. If you
exercise fewer than all of the warrants represented by a warrant
certificate, the warrant agent will issue to you a new warrant
certificate for the unexercised amount of warrants. Holders of
warrants will be required to pay any tax or governmental charge
that may be imposed in connection with transferring the
underlying securities in connection with the exercise of the
warrants.
Amendments
and Supplements to Warrant Agreements
We may amend or supplement a warrant agreement without the
consent of the holders of the applicable warrants if the changes
are not inconsistent with the provisions of the warrants and do
not materially adversely affect the interests of the holders of
the warrants. We, along with the warrant agent, may also modify
or amend a warrant agreement and the terms of the warrants if a
majority of the then-outstanding unexercised warrants affected
by the modification or amendment consent. No modification or
amendment that accelerates the expiration date, however, or
increases the exercise price, reduces the majority consent
requirement for any such modification or amendment, or otherwise
materially adversely affects the rights of the holders of the
warrants may be made without the consent of each holder affected
by the modification or amendment.
Common Stock Warrant Adjustments. Unless the
applicable prospectus supplement states otherwise, the exercise
price of, and the number of shares of common stock covered by, a
warrant for common stock will be adjusted in the manner set
forth in the applicable prospectus supplement if certain events
occur, including:
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we issue capital stock as a dividend or distribution on the
common stock;
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we subdivide, reclassify, or combine the common stock;
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we issue rights or warrants to all holders of common stock
entitling them to purchase common stock at less than the current
market price, as defined in the warrant agreement for such
series of common stock warrants;
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we distribute to all holders of common stock evidences of our
indebtedness or our assets, excluding certain cash dividends and
distributions referred to above; or
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any other event described in the applicable prospectus
supplement.
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Except as stated above, the exercise price and number of shares
of common stock covered by a common stock warrant will not be
adjusted if we issue common stock or any securities convertible
into or exchangeable for common stock, or securities carrying
the right to purchase common stock, or securities convertible
into or exchangeable for common stock.
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Holders of common stock warrants may have additional rights
under the following circumstances:
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a reclassification or change of the common stock;
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a consolidation, merger or share exchange involving our
Company; or
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a sale or conveyance to another corporation of all or
substantially all of our property and assets.
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If one of the above transactions occurs and holders of our
common stock are entitled to receive stock, securities, other
property or assets, including cash, with respect to or in
exchange for common stock, the holders of the common stock
warrants then outstanding will be entitled to receive upon
exercise of their common stock warrants the kind and amount of
shares of stock and other securities or property that they would
have received upon the reclassification, change, consolidation,
merger, share exchange, sale, or conveyance if they had
exercised their common stock warrants immediately before the
transaction.
Warrants
Issued Pursuant to Capital Purchase Program Under the Troubled
Asset Relief Program
As a condition to participating in the Capital Purchase Program
under the Troubled Asset Relief Program, we have issued to the
United States Department of the Treasury a warrant (the
CPP Warrant) to purchase 3,983,308 shares of
our common stock. The following is a brief description of the
terms of the CPP Warrant that may be resold by the United States
Department of the Treasury under this registration statement.
This summary does not purport to be complete in all respects.
This description is subject to and qualified in its entirety by
reference to the CPP Warrant, copies of which are incorporated
by reference to the registration statement of which this
prospectus is a part and are also available upon request from us.
The Warrant is initially exercisable for 3,983,308 shares
of our common stock. If we complete one or more Qualified Equity
Offerings on or prior to December 31, 2009 that result in
our receipt of aggregate gross proceeds of not less than
$525,000,000, which is equal to 100% of the aggregate
liquidation preference of the Senior Preferred Stock, the number
of shares of common stock underlying the CPP Warrant then held
by the selling securityholders will be reduced by 50% to
1,991,654 shares. The number of shares subject to the
Warrant is subject to further adjustments in the circumstances
described below under the heading
Exercise of the Warrant. The initial exercise
price of the Warrant is $19.77 per share of common stock for
which the CPP Warrant may be exercised. The CPP Warrant may be
exercised at any time on or before November 21, 2018 by
surrender of the CPP Warrant and a completed notice of exercise
attached as an annex to the CPP Warrant and the payment of the
exercise price for the shares of common stock for which the CPP
Warrant is being exercised. The CPP Warrant may be exercised by
following the general procedure outlined below:
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delivering to us the payment required to purchase the underlying
shares of common stock;
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properly completing and signing the reverse side of the CPP
Warrant certificate representing the CPP Warrant; and
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delivering the CPP Warrant certificate representing the CPP
Warrant to us within five business days of the CPP Warrant agent
receiving payment of the exercise price.
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If the holder of the CPP Warrant complies with the procedures
described above, the CPP Warrant will be considered to have been
exercised when we receive payment of the exercise price. After
the holder of the CPP Warrant has completed those procedures, we
will, as soon as practicable, issue and deliver to the holder of
the CPP Warrant the shares of common stock that are issued upon
exercise. We will not issue fractional shares upon any exercise
of the CPP Warrant. Instead, the holder of the CPP Warrant will
be entitled to a cash payment equal to the market price of our
common stock on the last day preceding the exercise of the CPP
Warrant (less the pro-rated exercise price of the CPP Warrant)
for any fractional shares that would have otherwise been
issuable upon exercise of the CPP Warrant. We will at all times
reserve the aggregate number of shares of our common stock for
which the CPP Warrant may be exercised.
The shares of common stock issuable upon exercise of the CPP
Warrant will be listed upon issuance with the Nasdaq Global
Select Market. The holder of the CPP Warrant will be required to
pay any tax or governmental charge that may be imposed in
connection with transferring the underlying shares of common
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stock in connection with the exercise of the CPP Warrant. The
exercise price applicable to the CPP Warrant is subject to
further adjustments described below under the heading
Adjustments to the CPP Warrant.
Rights as a Shareholder. The holder of the CPP
Warrant will have none of the rights or privileges that the
holders of our common stock enjoy, including any voting rights,
until (and then only to the extent) the CPP Warrant has been
exercised.
Transferability. The United States Department
of the Treasury may not transfer the CPP Warrant until the
earlier of the date on which we have received aggregate gross
proceeds from a qualified equity offering of at least
$525,000,000 and December 31, 2009. The CPP Warrant, and
all rights under the CPP Warrant, are otherwise transferable.
Adjustments in Connection with Stock Splits, Subdivisions,
Reclassifications and Combinations. The number of
shares for which the CPP Warrant may be exercised and the
exercise price applicable to the CPP Warrant will be
proportionately adjusted in the event we pay dividends or make
distributions of our common stock, subdivide, combine or
reclassify outstanding shares of our common stock.
Anti-dilution Adjustment. Until the earlier of
November 21, 2011 and the date the United States Department
of the Treasury no longer holds the CPP Warrant (and other than
in certain permitted transactions described below), if we issue
any shares of common stock (or securities convertible or
exercisable into common stock) for less than 90% of the market
price of the common stock on the last trading day prior to
pricing such shares, then the number of shares of common stock
into which the CPP Warrant is exercisable and the exercise price
will be adjusted. Permitted transactions include issuances:
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as consideration for or to fund the acquisition of businesses
and/or
related assets;
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in connection with employee benefit plans and compensation
related arrangements in the ordinary course and consistent with
past practice approved by our board of directors;
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in connection with public or broadly marketed offerings and
sales of common stock or convertible securities for cash
conducted by us or our affiliates pursuant to registration under
the Securities Act, or Rule 144A thereunder on a basis
consistent with capital-raising transactions by comparable
financial institutions; and
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in connection with the exercise of preemptive rights on terms
existing as of November 21, 2008.
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Other Distributions. If we declare any
dividends or distributions other than our historical, ordinary
cash dividends, the exercise price of the CPP Warrant will be
adjusted to reflect such distribution.
Certain Repurchases. If we effect a pro rata
repurchase of common stock both the number of shares issuable
upon exercise of the CPP Warrant and the exercise price will be
adjusted.
Business Combinations. In the event of a
merger, consolidation or similar transaction involving us and
requiring shareholder approval, the CPP Warrant holders
right to receive shares of our common stock upon exercise of the
CPP Warrant shall be converted into the right to exercise the
CPP Warrant for the consideration that would have been payable
to the holder of the CPP Warrant with respect to the shares of
common stock for which the CPP Warrant may be exercised, as if
the CPP Warrant had been exercised prior to such merger,
consolidation or similar transaction.
DESCRIPTION
OF UNITS
We may issue securities as part of a unit consisting of any
combination of the debt securities, common stock, preferred
stock, depositary shares and warrants described in this
prospectus. The terms of a series of units may be described in a
unit agreement between us and a bank or trust corporation as
unit agent. The applicable prospectus supplement will describe
the specific terms of any units.
51
CERTAIN
ERISA CONSIDERATIONS
The discussion herein of ERISA is general in nature and is not
intended to be all-inclusive. Any fiduciary of an ERISA plan,
governmental plan or church plan considering an investment in
the securities should consult with its legal advisors regarding
the consequences of such investment.
General
A fiduciary of an employee benefit plan subject to Title I
of the Employee Retirement Income Security Act of 1974, as
amended, or ERISA, should consider fiduciary standards under
ERISA in the context of the particular circumstances of such
plan before authorizing an investment in the securities. Such
fiduciary should consider whether the investment satisfies
ERISAs diversification and prudence requirements and
whether the investment is in accordance with the documents and
instruments governing the plan. In addition, ERISA and the tax
code prohibit a wide range of prohibited transactions involving
the assets of a plan subject to ERISA, or the assets of an
individual retirement account or plan subject to
section 4975 of the tax code, or any entity in which such
plan invests whose assets are deemed plan assets under ERISA,
referred to as an ERISA plan, and persons who have certain
specified relationships to the ERISA plan (parties in
interest, within the meaning of ERISA, and
disqualified person, within the meaning of the tax
code). Such transactions may require correction and
may cause the ERISA plan fiduciary to incur certain liabilities
and the parties in interest or a disqualified persons to be
subject to excise taxes.
Governmental plans and certain church plans (each as defined
under ERISA) are not subject to ERISAs fiduciary duty and
prohibited transaction rules. Such plans may, however, be
subject to federal, state, or local laws or regulations that may
affect their investment in the securities. Any fiduciary of such
a governmental or church plan considering an investment in the
securities should determine the effect of such laws or
regulations on a purchase of securities by such plan.
Prohibited
Transactions
We may be a party in interest or disqualified person with
respect to an ERISA plan investing in the securities. Therefore,
such investment by an ERISA plan may give rise to a prohibited
transaction in the form of either a sale of property by us to
the investing ERISA plan or an extension of credit by the
investing ERISA plan to us. Consequently, before investing in
the securities, any person who is, or who is acquiring such
securities for, or on behalf of, an ERISA plan should determine
either that we are not a party in interest or disqualified
person with respect to the ERISA plan or that a statutory or an
administrative exemption from the prohibited transaction rules
discussed below or otherwise available is applicable to such
investment in the securities or that such investment in, or
acquisition of, such securities will not result in a prohibited
transaction.
The statutory or administrative prohibited transaction class
exemptions, each a PTCE, from the prohibited transaction rules
under ERISA and the tax code that may be available to an ERISA
plan that is investing in the securities, include the following
ERISA investor exemptions:
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PTCE 90-1,
regarding investments by insurance company pooled separate
accounts;
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PTCE 91-38,
regarding investments by bank collective investment funds;
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PTCE 84-14,
regarding transactions effected by qualified professional asset
managers;
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PTCE 96-23,
regarding transactions effected by in-house managers;
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PTCE 95-60,
regarding investments by insurance company general
accounts; and
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ERISA Section 408(b)(17) and tax code
section 4975(d)(20) regarding certain transactions between
an ERISA plan and a party in interest or disqualified person
which is a service provider to the ERISA plan or related to such
service provider
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The acquisition of securities by any person or entity who is, or
who in acquiring such securities is using the assets of, an
ERISA plan will be deemed to constitute a representation by such
person or entity to us
52
either that we are not a disqualified person or party in
interest with respect to the ERISA plan or that such person or
entity is eligible for exemptive relief available pursuant to
either the ERISA investor exemptions or another applicable
exemption with respect to the acquisition and holding of such
securities.
GLOBAL
SECURITIES
Unless otherwise indicated in the applicable prospectus
supplement, securities other than common stock will be issued in
the form of one or more global certificates, or global
securities, registered in the name of a depositary or its
nominee. Unless otherwise indicated in the applicable prospectus
supplement, the depositary will be The Depository
Trust Company (DTC). We understand that
DTCs nominee will be Cede & Co. Accordingly, we
expect Cede & Co. to be the initial registered holder
of all securities that are issued in global form. No person that
acquires a beneficial interest in those securities will be
entitled to receive a certificate representing that
persons interest in the securities, except as described
herein or in the applicable prospectus supplement. Unless and
until definitive securities are issued under the limited
circumstances described below, all references to actions by
holders of securities issued in global form will refer to
actions taken by DTC upon instructions from its participants,
and all references to payments and notices to holders will refer
to payments and notices to DTC or Cede & Co. as the
registered holder of these securities.
We understand that DTC is a limited-purpose trust company
organized under the New York Banking Law, a banking
organization within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a clearing
corporation within the meaning of the New York Uniform
Commercial Code, and a clearing agency registered
pursuant to the provisions of Section 17A of the Exchange
Act. DTC holds securities that DTC participants deposit with
DTC. DTC also facilitates the settlement among DTC participants
of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry
changes in DTC participants accounts, thereby eliminating
the need for physical movement of certificates. DTC participants
include securities brokers and dealers, banks, trust companies
and clearing corporations, and may include other organizations.
Indirect access to the DTC system also is available to others
such as banks, brokers, dealers, and trust companies that clear
through or maintain a custodial relationship with a participant,
either directly or indirectly. The rules applicable to DTC and
DTC participants are on file with the SEC.
Persons that are not participants or indirect participants but
desire to purchase, sell, or otherwise transfer ownership of, or
other interests in, securities may do so only through
participants and indirect participants. Under a book-entry
format, holders may experience some delay in their receipt of
payments, as such payments will be forwarded by our designated
agent to Cede & Co., as nominee for DTC. DTC will
forward such payments to its participants, who will then forward
them to indirect participants or holders. Holders will not be
recognized by the relevant registrar, transfer agent, trustee,
depositary, or warrant agent as registered holders of the
securities entitled to the benefits of our Amended and Restated
Articles of Incorporation or the applicable indenture, deposit
agreement, or warrant agreement. Beneficial owners that are not
participants will be permitted to exercise their rights only
indirectly through and according to the procedures of
participants and, if applicable, indirect participants.
Under the rules, regulations, and procedures creating and
affecting DTC and its operations as currently in effect, DTC
will be required to make book-entry transfers of securities
among participants and to receive and transmit payments to
participants. DTC rules require participants and indirect
participants with which beneficial securities owners have
accounts to make book-entry transfers and receive and transmit
payments on behalf of their respective account holders.
Because DTC can act only on behalf of
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participants, who in turn act only on behalf of participants or
indirect participants, and
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certain banks, trust companies and other persons approved
by it.
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The ability of a beneficial owner of securities issued in global
form to pledge such securities to persons or entities that do
not participate in the DTC system may be limited due to the
unavailability of physical certificates for these securities.
We understand that DTC will take any action permitted to be
taken by a registered holder of any securities under our Amended
and Restated Articles of Incorporation, as amended, or the
relevant indenture, deposit agreement, or warrant agreement only
at the direction of one or more participants to whose accounts
with DTC such securities are credited.
Unless otherwise indicated in the applicable prospectus
supplement, a global security will be exchangeable for the
relevant definitive securities registered in the names of
persons other than DTC or its nominee only if:
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DTC notifies us that it is unwilling or unable to continue as
depositary for that global security or if DTC ceases to be a
clearing agency registered under the Exchange Act when DTC is
required to be so registered;
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we execute and deliver to the relevant registrar, transfer
agent, trustee, depositary
and/or
warrant agent an order complying with the requirements of the
applicable indenture, deposit agreement or warrant agreement
that the global security will be exchangeable for definitive
securities in registered form; or
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there has occurred and is continuing a default in the payment of
any amount due in respect of the securities or, in the case of
debt securities, an event of default or an event that, with the
giving of notice or lapse of time, or both, would constitute an
event of default with respect to these debt securities.
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Any global security that is exchangeable under the preceding
sentence will be exchangeable for securities registered in such
names as DTC directs.
Upon the occurrence of any event described in the above
paragraph, DTC is generally required to notify all participants
of the availability of definitive securities. Upon DTC
surrendering the global security representing the securities and
delivery of instructions for reregistration, the registrar,
transfer agent, trustee, depositary, or warrant agent, as the
case may be, will reissue the securities as definitive
securities, and then such persons will recognize the holders of
such definitive securities as registered holders of securities
entitled to the benefits of our Amended and Restated Articles of
Incorporation, as amended, or the relevant indenture, deposit
agreement
and/or
warrant agreement.
Redemption notices will be sent to Cede & Co. as the
registered holder of the global securities. If less than all of
a series of debt securities are being redeemed, DTC will
determine the amount of the interest of each direct participant
to be redeemed in accordance with its then current procedures.
Except as described above, the global security may not be
transferred except as a whole by DTC to a nominee of DTC or by a
nominee of DTC to DTC or another nominee of DTC or to a
successor depositary we appoint. Except as described above, DTC
may not sell, assign, transfer, or otherwise convey any
beneficial interest in a global security evidencing all or part
of any securities unless the beneficial interest is in an amount
equal to an authorized denomination for these securities.
The information in this section concerning DTC and DTCs
book-entry system has been obtained from sources that we believe
to be accurate, but we assume no responsibility for the accuracy
thereof. None of Associated Banc-Corp, the trustee, any
registrar and transfer agent, any warrant agent or any
depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTCs or any
participants records relating to, or for payments made on
account of, beneficial interests in a global security, or for
maintaining, supervising, or reviewing any records relating to
such beneficial interests.
Secondary trading in notes and debentures of corporate issuers
is generally settled in clearing-house or
next-day
funds. In contrast, beneficial interests in a global security,
in some cases, may trade in the DTCs
same-day
funds settlement system, in which secondary market trading
activity in those beneficial interests would be required by DTC
to settle in immediately available funds. There is no assurance
as to the effect, if
54
any, that settlement in immediately available funds would have
on trading activity in such beneficial interests. Also,
settlement for purchases of beneficial interests in a global
security upon the original issuance of this security may be
required to be made in immediately available funds.
If specified in a prospectus supplement to this prospectus with
respect to a particular series, investors may elect to hold
interests in a particular series of debt securities outside the
U.S. through Clearstream Banking, societe anonyme
(Clearstream) or the Euroclear System
(Euroclear), if they are participants in those
systems, or indirectly through organizations that are
participants in those systems. Clearstream and Euroclear will
hold interests on behalf of their participants through
customers securities accounts in Clearstreams and
Euroclears names on the books of their respective
depositaries. Those depositaries in turn hold those interests in
customers securities accounts in the depositaries
names on the books of DTC.
Clearstream has advised us that it is incorporated under the
laws of Luxembourg as a professional depositary. Clearstream
holds securities for its participants and facilitates the
clearance and settlement of securities transactions between
Clearstream participants through electronic book-entry changes
in accounts of participants, thereby eliminating the need for
physical movement of certificates. Clearstream provides to
Clearstream participants, among other things, services for
safekeeping, administration, clearance and settlement of
internationally traded securities, and securities lending and
borrowing. Clearstream interfaces with domestic markets in
several countries. As a registered bank in Luxembourg,
Clearstream is subject to regulation by the Luxembourg
Commission for the Supervision of the Financial Sector.
Clearstream participants are financial institutions around the
world, including underwriters, securities brokers and dealers,
banks, trust companies, clearing corporations, and other
organizations and may include the underwriters for a particular
offering of debt securities. Indirect access to Clearstream is
also available to others, such as banks, brokers, dealers, and
trust companies that clear through or maintain a custodial
relationship with a Clearstream participant, either directly or
indirectly.
Distributions with respect to permanent global debt securities
held beneficially through Clearstream will be credited to cash
accounts of Clearstream participants in accordance with its
rules and procedures, to the extent received by the
U.S. depositary for Clearstream.
Euroclear has advised us that it was created in 1968 to hold
securities for participants of Euroclear and to clear and settle
transactions between Euroclear participants through simultaneous
electronic book-entry delivery against payment, thereby
eliminating the need for physical movement of certificates and
any risk from lack of simultaneous transfers of securities and
cash. Euroclear includes various other services, including
securities lending and borrowing, and interfaces with domestic
markets in several countries. Euroclear is operated by Euroclear
Bank S.A./N.V. (the Euroclear Operator), under
contract with Euroclear Clearance Systems S.C., a Belgian
cooperative corporation (the Cooperative). The
Euroclear Operator conducts all Euroclear operations, and all
Euroclear securities clearance accounts and Euroclear cash
accounts are accounts with the Euroclear Operator, not the
Cooperative.
The Cooperative establishes policy for Euroclear on behalf of
Euroclear participants. Euroclear participants include banks
(including central banks), securities brokers and dealers, and
other professional financial intermediaries and may include the
underwriters for a particular offering of debt securities.
Indirect access to Euroclear is also available to other firms
that clear through or maintain a custodial relationship with a
Euroclear participant, either directly or indirectly.
Securities clearance accounts and cash accounts with the
Euroclear Operator are governed by the Terms and Conditions
Governing Use of Euroclear and the related Operating Procedures
of the Euroclear System, and applicable Belgian law
(collectively, the Terms and Conditions). The Terms
and Conditions govern transfers of securities and cash within
Euroclear, withdrawals of securities and cash from Euroclear,
and receipts of payments with respect to securities in
Euroclear. The Euroclear Operator holds all securities in
Euroclear on a fungible basis without attribution of specific
certificates to specific securities clearance accounts. The
Euroclear Operator acts under the Terms and Conditions only on
behalf of Euroclear participants and has no record of or
relationship with persons holding through Euroclear participants.
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Distributions with respect to permanent global debt securities
held beneficially through Euroclear will be credited to the cash
accounts of Euroclear participants in accordance with the Terms
and Conditions, to the extent received by the
U.S. depositary for Euroclear.
Global
Clearance and Settlement Procedures
Unless otherwise specified in a prospectus supplement with
respect to a particular series of permanent global debt
securities, initial settlement for permanent global debt
securities will be made in immediately available funds. DTC
participants will conduct secondary market trading with other
DTC participants in the ordinary way in accordance with DTC
rules and accordingly secondary market trades will settle in
immediately available funds using DTCs same day funds
settlement system.
If the prospectus supplement specifies that interests in the
permanent global debt securities may be held through Clearstream
or Euroclear, Clearstream
and/or
Euroclear participants will conduct secondary market trading
with other Clearstream
and/or
Euroclear participants in the ordinary way in accordance with
the applicable rules and operating procedures of Clearstream and
Euroclear. Then secondary market trades will settle using the
procedures applicable to conventional eurobonds in immediately
available funds.
Cross-market transfers between persons holding directly or
indirectly through DTC on the one hand, and directly or
indirectly through Clearstream or Euroclear participants on the
other, will be effected in DTC in accordance with DTCs
rules on behalf of the relevant European international clearing
system by the U.S. depositary for that system; however,
those cross-market transactions will require delivery by the
counterparty in the relevant European international clearing
system of instructions to that system in accordance with its
rules and procedures and within its established deadlines
(European time). The relevant European international clearing
system will, if the transaction meets its settlement
requirements, deliver instructions to the U.S. depositary
for that system to take action to effect final settlement on its
behalf by delivering or receiving interests in permanent global
debt securities in DTC and making or receiving payment in
accordance with normal procedures for
same-day
funds settlement applicable to DTC. Clearstream participants and
Euroclear participants may not deliver instructions directly to
DTC.
Because of time-zone differences, credits of interests in
permanent global debt securities received in Clearstream or
Euroclear as a result of a transaction with a DTC participant
will be made during subsequent securities settlement processing
and will be credited the business day following the DTC
settlement date. Those credits or any transactions in permanent
global debt securities settled during that processing will be
reported to the relevant Euroclear or Clearstream participants
on that business day. Cash received in Clearstream or Euroclear
as a result of sales of interests in permanent global debt
securities by or through a Clearstream participant or a
Euroclear participant to a DTC participant will be received with
value on the DTC settlement date but will be available in the
relevant Clearstream or Euroclear cash account only as of the
business day following settlement in DTC.
Although DTC, Clearstream, and Euroclear have agreed to the
procedures described above in order to facilitate transfers of
interests in permanent global debt securities among DTC
participants, Clearstream, and Euroclear, they are under no
obligation to perform those procedures, and those procedures may
be discontinued at any time.
SELLING
SECURITY HOLDERS
Information about selling security holders, where applicable,
will be set forth in a prospectus supplement, in a post
effective amendment, or in filings we make with the SEC which
are incorporated into this prospectus by reference.
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PLAN OF
DISTRIBUTION
Sales by
Us or the Trusts
We may sell the securities offered by this prospectus to or
through underwriters or dealers, through agents, directly to one
or more purchasers, or through a combination of methods. No
commission will be payable and no discount will be allowed on
any sales we or our affiliates make directly. We may also offer
the securities in exchange for our other securities.
Underwriters, dealers, and agents that participate in the
distribution of the securities offered under this prospectus may
be underwriters as defined in the Securities Act of 1933, as
amended (the Securities Act), and any discounts or
commissions received by them from us and any profit on the
resale of the offered securities by them may be treated as
underwriting discounts and commissions under the Securities Act.
Any underwriters or agents will be identified and their
compensation, including any underwriting discount or commission,
will be described in the applicable prospectus supplement. The
prospectus supplement will also describe other terms of the
offering, including the initial public offering price, any
discounts or concessions allowed or re-allowed or paid to
dealers and any securities exchanges on which the offered
securities may be listed.
The distribution of the securities offered under this prospectus
may occur from time to time in one or more transactions at a
fixed price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to the
prevailing market prices or at negotiated prices.
In addition, we may enter into derivative transactions with
third parties, or sell securities not covered by this prospectus
to third parties in privately negotiated transactions. In
connection with such a transaction, the third parties may sell
securities covered by and pursuant to this prospectus and an
applicable prospectus supplement. If so, the third party may use
securities borrowed from us or others to settle such sales and
may use securities received from us to close out any related
short positions. We may also loan or pledge securities covered
by this prospectus and an applicable prospectus supplement to
third parties, who may sell the loaned securities or, in an
event of default in the case of a pledge, sell the pledged
securities pursuant to this prospectus and the applicable
prospectus supplement.
In connection with an offering of securities, underwriters may
purchase and sell these securities in the open market. These
transactions may include over-allotment and stabilizing
transactions and purchases to cover short positions created by
underwriters with respect to the offering. Stabilizing
transactions consist of certain bids or purchases for preventing
or retarding a decline in the market price of the securities;
short positions created by underwriters involve the sale by
underwriters of a greater number of securities than they are
required to purchase from us in the offering. Underwriters also
may impose a penalty bid, by which selling concessions allowed
to broker-dealers in respect of the securities sold in the
offering may be reclaimed by underwriters if such securities are
repurchased by underwriters in stabilizing or covering
transactions. These activities may stabilize, maintain, or
otherwise affect the market price of the securities, which may
be higher than the price that might otherwise prevail in the
open market; these activities, if commenced, may be discontinued
without notice at any time.
We may determine the price or other terms of the securities
offered under this prospectus by use of an electronic auction.
We will describe in the applicable prospectus supplement how any
auction will be conducted to determine the price or any other
terms of the securities, how potential investors may participate
in the auction and, when applicable, the nature of the
underwriters obligations with respect to the auction.
If the securities offered under this prospectus are issued in
exchange for our outstanding securities, the applicable
prospectus supplement will set forth the terms of the exchange,
the identity of and the terms of sale of the securities offered
under this prospectus by the selling security holders.
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If the applicable prospectus supplement indicates, we will
authorize dealers or our agents to solicit offers by
institutions to purchase offered securities from us under
contracts that provide for payment and delivery on a future
date. We must approve all institutions, but they may include,
among others:
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commercial and savings banks;
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insurance companies;
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pension funds;
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investment companies; and
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educational and charitable institutions.
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The institutional purchasers obligations under the
contract are only subject to the condition that the purchase of
the offered securities at the time of delivery is allowed by the
laws that govern the purchaser. The dealers and our agents will
not be responsible for the validity or performance of the
contracts.
We may have agreements with the underwriters, dealers, and
agents to indemnify them against certain civil liabilities,
including liabilities under the Securities Act, or to contribute
with respect to payments which the underwriters, dealers, or
agents may be required to make as a result of those certain
civil liabilities.
If we offer bearer debt securities under this prospectus, each
underwriter, dealer, and agent that participates in the
distribution of any original issuance of bearer debt securities
will agree not to offer, sell, or deliver bearer debt securities
to a U.S. citizen or to any person within the U.S., unless
federal law permits otherwise.
When we issue the securities offered by this prospectus, except
for shares of common stock or debt securities issued upon a
reopening of an existing series of debt securities, they may be
new securities without an established trading market. The
securities may or may not be listed on a national securities
exchange or the Nasdaq Global Select Market. If we sell a
security offered by this prospectus to an underwriter for public
offering and sale, the underwriter may make a market for that
security, but the underwriter will not be obligated to do so and
could discontinue any market making without notice at any time.
Therefore, we cannot give any assurances to you concerning the
liquidity of any security offered by this prospectus.
Underwriters, dealers, and agents and their affiliates may be
customers of, engage in transactions with, or perform services
for us or our subsidiaries in the ordinary course of their
businesses. In connection with the distribution of the
securities offered under this prospectus, we may enter into swap
or other hedging transactions with, or arranged by, underwriters
or agents or their affiliates. These underwriters or agents or
their affiliates may receive compensation, trading gain, or
other benefits from these transactions.
The dealers/underwriters do not intend to make sales of the
capital securities to accounts over which they exercise
discretionary authority without obtaining the prior written
approval of the account holder.
We have obtained the information in this section about DTC and
DTCs book-entry system from sources that we believe are
accurate, but we assume no responsibility for the accuracy of
the information. We do not have any responsibility for the
performance by DTC or its participants of their respective
obligations as described in this prospectus or under the rules
and procedures governing their respective operations.
Sales by
Selling Security Holders
The selling security holders may resell or redistribute the
securities from time to time on any stock exchange or automated
interdealer quotation system on which the securities are listed,
in the
over-the-counter
market, in privately negotiated transactions, or in any other
legal manner, at fixed prices that may be changed, at market
prices prevailing at the time of sale, at prices related to
prevailing market prices or at negotiated prices. Persons who
are pledgees, donees, transferees, or other successors in
interest of any of the named selling security holders (including
but not limited to persons who receive securities from a named
selling security holder as a gift, partnership distribution or
other non-sale-related transfer after the date of this
prospectus) may also use this prospectus and are included when
we refer to selling security holders in this
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prospectus. The selling security holders may sell the securities
by one or more of the following methods, without limitation:
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block trades (which may include cross trades) in which the
broker or dealer so engaged will attempt to sell the securities
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
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purchases by a broker or dealer as principal and resale by the
broker or dealer for its own account;
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an exchange distribution or secondary distribution in accordance
with the rules of any stock exchange on which the securities may
be listed;
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ordinary brokerage transactions and transactions in which the
broker solicits purchases;
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an offering at other than a fixed price on or through the
facilities of any stock exchange on which the securities are
listed or to or through a market maker other than on that stock
exchange;
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privately negotiated transactions, directly or through agents;
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short sales;
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through the writing of options on the securities, whether or the
options are listed on an options exchange;
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through the distribution of the securities by any security
holders to its partners, members or stockholders;
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one or more underwritten offerings;
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agreements between a broker or dealer and any security holder to
sell a specified number of the securities at a stipulated price
per share; and
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any combination of any of these methods of sale or distribution,
or any other method permitted by applicable law.
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The security holders may also transfer the securities by gift.
The selling security holders may engage brokers and dealers, and
any brokers or dealers may arrange for other brokers or dealers
to participate in effecting sales of the securities. These
brokers, dealers or underwriters may act as principals, or as an
agent of a selling security holder. Broker-dealers may agree
with a selling security holder to sell a specified number of the
securities at a stipulated price per share. If the broker-dealer
is unable to sell securities acting as agent for a selling
security holder, it may purchase as principal any unsold
securities at the stipulated price. Broker-dealers who acquire
securities as principals may thereafter resell the securities
from time to time in transactions in any stock exchange or
automated interdealer quotation system on which the securities
are then listed, at prices and on terms then prevailing at the
time of sale, at prices related to the then-current market price
or in negotiated transactions. Broker-dealers may use block
transactions and sales to and through broker-dealers, including
transactions of the nature described above.
From time to time, one or more of the selling security holders
may pledge, hypothecate or grant a security interest in some or
all of the securities owned by them. The pledgees, secured
parties or persons to whom the securities have been hypothecated
will, upon foreclosure in the event of default, be deemed to be
selling security holders. The number of a selling security
holders securities offered under this prospectus will
decrease as and when it takes such actions. The plan of
distribution for that selling security holders securities
will otherwise remain unchanged. In addition, a selling security
holder may, from time to time, sell the securities short, and,
in those instances, this prospectus may be delivered in
connection with the short sales and the securities offered under
this prospectus may be used to cover short sales.
The selling security holders and any underwriters, brokers,
dealers or agents that participate in the distribution of the
securities may be deemed to be underwriters within
the meaning of the Securities Act, and any discounts,
concessions, commissions or fees received by them and any profit
on the resale of the securities sold by them may be deemed to be
underwriting discounts and commissions.
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A selling security holder may enter into hedging transactions
with broker-dealers and the broker-dealers may engage in short
sales of the securities in the course of hedging the positions
they assume with that selling security holder, including,
without limitation, in connection with distributions of the
securities by those broker- dealers. A selling security holder
may enter into option or other transactions with broker-dealers
that involve the delivery of the securities offered hereby to
the broker-dealers, who may then resell or otherwise transfer
those securities. A selling security holder may also loan or
pledge the securities offered hereby to a broker-dealer and the
broker-dealer may sell the securities offered hereby so loaned
or upon a default may sell or otherwise transfer the pledged
securities offered hereby.
The selling security holders and other persons participating in
the sale or distribution of the securities will be subject to
applicable provisions of the Exchange Act and the related rules
and regulations adopted by the SEC, including Regulation M.
This regulation may limit the timing of purchases and sales of
any of the securities by the selling security holders and any
other person. The anti-manipulation rules under the Exchange Act
may apply to sales of securities in the market and to the
activities of the selling security holders and their affiliates.
Furthermore, Regulation M may restrict the ability of any
person engaged in the distribution of the securities to engage
in market-making activities with respect to the particular
securities being distributed for a period of up to five business
days before the distribution. These restrictions may affect the
marketability of the securities and the ability of any person or
entity to engage in market-making activities with respect to the
securities.
We may agree to indemnify the selling security holders and their
respective officers, directors, employees and agents, and any
underwriter or other person who participates in the offering of
the securities, against specified liabilities, including
liabilities under the federal securities laws or to contribute
to payments the underwriters may be required to make in respect
of those liabilities. The selling security holders may agree to
indemnify us, the other selling security holders and any
underwriter or other person who participates in the offering of
the securities, against specified liabilities arising from
information provided by the selling security holders for use in
this prospectus or any accompanying prospectus supplement,
including liabilities under the federal securities laws. In each
case, indemnification may include each person who is an
affiliate of or controls one of these specified indemnified
persons within the meaning of the federal securities laws or is
required to contribute to payments the underwriters may be
required to make in respect of those liabilities. The selling
security holders may agree to indemnify any brokers, dealers or
agents who participate in transactions involving sales of the
securities against specified liabilities arising under the
federal securities laws in connection with the offering and sale
of the securities.
We will not receive any proceeds from sales of any securities by
the selling security holders.
We can not assure you that the selling security holders will
sell all or any portion of the securities offered hereby.
We will supply the selling security holders and any stock
exchange upon which the securities are listed with reasonable
quantities of copies of this prospectus. To the extent required
by Rule 424 under the Securities Act in connection with any
resale or redistribution by a selling security holder, we will
file a prospectus supplement setting forth:
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the aggregate number of securities to be sold;
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the purchase price;
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the public offering price;
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if applicable, the names of any underwriter, agent or
broker-dealer; and
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any applicable commissions, discounts, concessions, fees or
other items constituting compensation to underwriters, agents or
broker-dealers with respect to the particular transaction (which
may exceed customary commissions or compensation).
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If a selling security holder notifies us that a material
arrangement has been entered into with a broker-dealer for the
sale of securities through a block trade, special offering,
exchange, distribution or secondary
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distribution or a purchase by a broker or dealer, the prospectus
supplement will include any other facts that are material to the
transaction. If applicable, this may include a statement to the
effect that the participating broker-dealers did not conduct any
investigation to verify the information set out or incorporated
by reference in this prospectus.
The registration statement that contains this prospectus also
registers the resale of shares of preferred stock, warrants and
shares of common stock to be issued upon the exercise of the
warrants, which have been sold to the United States Department
of the Treasury pursuant to the Capital Purchase Program under
the Troubled Asset Relief Program.
LEGAL
MATTERS
The validity of the common stock, preferred stock, depositary
shares and warrants offered by us pursuant to this prospectus
will be passed upon for us by Janet M. Neal, Vice-President and
Associate Counsel of Associated Banc-Corp. The validity of the
senior debt securities, the subordinated debt securities, the
junior subordinated debt securities and guarantees offered by us
pursuant to this prospectus will be passed upon for us by Katten
Muchin Rosenman LLP, Chicago, Illinois. Richards,
Layton & Finger, P.A., Wilmington, Delaware, will pass
upon certain legal matters for the trusts.
EXPERTS
The consolidated financial statements of Associated Banc-Corp as
of December 31, 2007, and 2006, and for each of the years
in the three-year period ended December 31, 2007 and
managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2007
have been incorporated by reference in this prospectus and in
the registration statement in reliance upon the report of KPMG
LLP, independent registered public accounting firm, incorporated
by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
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