-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PEW+FJYqRxGxTqaVJUbhrQB23vDLSSkPLcUYfA69sdIVsU6grjjJdu2/sYoMew5R 3w3Zt4g0skvrewV/qUw7KQ== 0000898822-06-000664.txt : 20060526 0000898822-06-000664.hdr.sgml : 20060526 20060526170403 ACCESSION NUMBER: 0000898822-06-000664 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20060526 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060526 DATE AS OF CHANGE: 20060526 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERIPRISE FINANCIAL INC CENTRAL INDEX KEY: 0000820027 IRS NUMBER: 133180631 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32525 FILM NUMBER: 06871376 BUSINESS ADDRESS: STREET 1: 50591 AMERIPRISE FINANCIAL CENTER STREET 2: GENERAL COUNSEL'S OFFICE CITY: MINNEAPOLIS STATE: MN ZIP: 55474 BUSINESS PHONE: 612-671-4471 MAIL ADDRESS: STREET 1: 50591 AMERIPRISE FINANCIAL CENTER STREET 2: GENERAL COUNSEL'S OFFICE CITY: MINNEAPOLIS STATE: MN ZIP: 55474 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN EXPRESS FINANCIAL CORP DATE OF NAME CHANGE: 20030513 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN EXPRESS FINANCIAL ADVISORS DATE OF NAME CHANGE: 19950711 FORMER COMPANY: FORMER CONFORMED NAME: IDS FINANCIAL CORP/MN/ DATE OF NAME CHANGE: 19920703 8-K 1 amp8k.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 - ------------------------------------------------------------------------------- FORM 8-K - ------------------------------------------------------------------------------- CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT: MAY 23, 2006 (DATE OF EARLIEST EVENT REPORTED) - ------------------------------------------------------------------------------- AMERIPRISE FINANCIAL, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) - ------------------------------------------------------------------------------- DELAWARE (STATE OR OTHER JURISDICTION OF INCORPORATION) 001-32525 13-3180631 (COMMISSION FILE NUMBER) (IRS EMPLOYER IDENTIFICATION NO.) 55 AMERIPRISE FINANCIAL CENTER MINNEAPOLIS, MINNESOTA 55474 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) (612) 671-3131 (REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. On May 26, 2006, we issued $500,000,000 aggregate principal amount of our 7.518% Junior Subordinated Notes Due 2066 (the "Securities") pursuant to a Prospectus Supplement dated May 16, 2006 to the Prospectus dated May 5, 2006, filed as part of our Registration Statement on Form S-3 (Registration No. 333-133860; effective immediately pursuant to Rule 462(e) of Regulation C of the Securities and Exchange Act of 1933, as amended) filed with the Securities and Exchange Commission. The terms and conditions of the Securities and related matters are set forth in the Junior Subordinated Debt Indenture, dated as of May 5, 2006, between the Company and U.S. Bank National Association (the "Trustee"), as supplemented by the First Supplemental Junior Subordinated Indenture, dated as of May 26, 2006, between the Company and the Trustee (the "Supplemental Indenture"). The sale of the Securities was underwritten by Lehman Brothers Inc. and J.P. Morgan Securities Inc., pursuant to an Underwriting Agreement dated May 23, 2006 (the "Underwriting Agreement"). Interest on the Securities will accrue from the issue date until June 1, 2016 at a fixed rate equal to 7.518% per year. From June 1, 2016 until maturity, interest on the Securities will be payable quarterly in arrears on March 1, June 1, September 1 and December 1 of each year, at an annual rate equal to 3-month LIBOR plus a margin equal to 290.5 basis points, subject to our right to defer interest payments for up to ten years and other conditions. At our option, we may redeem the Securities in whole or in part at their aggregate principal amount, together with any accrued and unpaid interest, on or after June 1, 2016, for cash in an amount equal to 100% of the principal amount of the Securities to be redeemed, plus accrued and unpaid interest, including any compounded interest. The preceding is a summary of the terms of the Underwriting Agreement, the Supplemental Indenture and the Securities, and is qualified in its entirety by reference to the Underwriting Agreement attached as Exhibit 1.1, the Supplemental Indenture attached as Exhibit 4.1 and the Form of 7.518% Junior Subordinated Notes due 2066 attached as Exhibit 4.2 and each is incorporated herein by reference as though it were fully set forth herein. ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF THE REGISTRANT The disclosures under Item 1.01 of this Current Report on Form 8-K relating to the Underwriting Agreement, the Supplemental Indenture and the Securities are also responsive to Item 2.03 of this report and are incorporated by reference into this Item 2.03. ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS. (d) Exhibits EXHIBIT NO. EXHIBIT DESCRIPTION 1.1 Underwriting Agreement, dated May 23, 2006, between the Company, Lehman Brothers Inc. and J.P. Morgan Securities Inc. 4.1 First Supplemental Junior Subordinated Debt Indenture, dated as of May 26, 2006, between the Company and U.S. Bank National Association. 4.2 Form of 7.518% Junior Subordinated Notes due 2066 of the Company. 8.1 Tax Opinion of Wachtell, Lipton, Rosen & Katz. 23.1 Consent of Wachtell, Lipton, Rosen & Katz. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. AMERIPRISE FINANCIAL, INC. Date: May 26, 2006 By: /s/ David K. Stewart ------------------------------------ David K. Stewart Senior Vice President and Controller EXHIBIT NO. EXHIBIT DESCRIPTION 1.1 Underwriting Agreement, dated May 23, 2006, between the Company, Lehman Brothers Inc. and J.P. Morgan Securities Inc. 4.1 First Supplemental Junior Subordinated Debt Indenture, dated as of May 26, 2006, between the Company and U.S. Bank National Association. 4.2 Form of 7.518% Junior Subordinated Notes due 2066 of the Company. 8.1 Tax Opinion of Wachtell, Lipton, Rosen & Katz. 23.1 Consent of Wachtell, Lipton, Rosen & Katz. EX-1 2 under.txt (EXHIBIT 1.1) Exhibit 1.1 $500,000,000 AMERIPRISE FINANCIAL, INC. 7.518% JUNIOR SUBORDINATED NOTES DUE 2066 UNDERWRITING AGREEMENT May 23, 2006 LEHMAN BROTHERS INC. 745 Seventh Avenue New York, New York 10019 J.P. MORGAN SECURITIES INC. 277 Park Avenue New York, New York 10172 Ladies and Gentlemen: Ameriprise Financial, Inc., a Delaware corporation (the "COMPANY"), proposes to issue and sell $500,000,000 aggregate principal amount of its 7.518% Junior Subordinated Notes due 2066 (the "NOTES") to you (the "UNDERWRITERS"), for whom Lehman Brothers Inc. is acting as representative (the "REPRESENTATIVE"). The Notes will (i) have terms and provisions which are summarized in the Disclosure Package as of the Applicable Time and the Prospectus dated as of the date hereof (each as defined below) and (ii) are to be issued pursuant to the Company's junior subordinated indenture dated as of May 5, 2006, as amended and supplemented by a supplemental indenture to be dated as of the date of completion of this offering (the "INDENTURE") between the Company and U.S. Bank National Association, as Trustee (the "TRUSTEE"). This agreement (this "AGREEMENT") is to confirm the agreement concerning the purchase of the Notes from the Company by the Underwriters. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Indenture. 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company represents and warrants to, and agrees with, each Underwriter that: (a) An "automatic shelf registration statement" (as such term is defined in Rule 405 under the Securities Act of 1933, as amended (the "SECURITIES ACT")) on Form S-3 in respect of the Notes (File No. 333-133860) (the "INITIAL REGISTRATION STATEMENT") (i) has been prepared by the Company in conformity with the requirements of the Securities Act and the rules and regulations (the "RULES AND REGULATIONS") of the Securities and Exchange Commission (the "COMMISSION") thereunder; (ii) has been filed with the Commission thereunder not earlier than the date that is three years prior to the Closing Date (as defined in Section 4 hereof); and (iii) is effective under the Securities Act. Copies of such Initial Registration Statement and any amendment thereto (excluding exhibits to such Initial Registration Statement but including all documents incorporated by reference in each prospectus contained therein) have been delivered by the Company to the Representative; and no other document with respect to such Initial Registration Statement or any such document incorporated by reference therein has heretofore been filed or transmitted for filing with the Commission. For purposes of this Agreement, "APPLICABLE TIME" means 3:45 p.m. (New York City time) on the date of this Agreement; "BASE PROSPECTUS" means the base prospectus to be used in connection with offerings of debt securities, warrants, purchase contracts, units, preferred stock, depositary shares and common stock of Ameriprise on a continuous or delayed basis and filed as part of the Registration Statement, in the form in which it has most recently been amended on or prior to the date hereof, relating to the Notes; "EFFECTIVE DATE" means the date as of which any part of the Registration Statement or any post-effective amendment thereto relating to the Securities became, or is deemed to have become, effective under the Securities Act in accordance with the Rules and Regulations (including any deemed amendment pursuant to Rule 430B); "ISSUER FREE WRITING PROSPECTUS" means each "free writing prospectus" (as such term is defined in Rule 405 under the Securities Act), but which does not include communications not deemed a prospectus pursuant to Rule 134 of the Securities Act and historical issuer information meeting the requirements of Rule 433(e)(2) of the Securities Act, prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Securities, including the final term sheet prepared pursuant to Section 5(a)(i) hereof and attached to this Agreement in Schedule II hereto (the "FINAL TERM SHEET"); "PRELIMINARY PROSPECTUS" means any preliminary prospectus relating to the Securities, including the Base Prospectus and any preliminary prospectus supplement thereto, included in the Registration Statement or filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and provided to the Representative for use by the Underwriters; "DISCLOSURE PACKAGE" means, as of the Applicable Time, the most recent Preliminary Prospectus, together with each Issuer Free Writing Prospectus filed or used by the Company on or before the Applicable Time and identified on Schedule II hereto; "PROSPECTUS" means the final prospectus relating to the Securities, including the Base Prospectus and any final prospectus supplement thereto relating to the Securities, as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and provided to the Representative for use by the Underwriters; and "REGISTRATION STATEMENT" means, collectively, the various parts of the Initial Registration Statement, including all exhibits thereto, each as amended as of the Effective Date for such part, including any Preliminary Prospectus or the Prospectus and all exhibits to such registration statement. Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Form S-3 under 2 the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. Any reference to the "MOST RECENT PRELIMINARY PROSPECTUS" shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) prior to or on the date hereof (including, for purposes hereof, any documents incorporated by reference therein prior to or on the date hereof). Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), after the date of such Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any annual report of the Company on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Registration Statement. (b) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceeding for that purpose has been initiated or threatened by the Commission; no notice of objection of the Commission to the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; and no order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission. (c) The Registration Statement conformed in all material respects on the Effective Date, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the requirements of the Securities Act and the Rules and Regulations. The Preliminary Prospectus as of the date of its filing with the Commission conformed, and the Prospectus as of the date of its filing with the Commission and as of the Closing Date will conform, in all material respects, to the requirements of the Securities Act and the Rules and Regulations. (d) The Registration Statement did not, as of the Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; PROVIDED that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 13, or with respect to any Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act filed as an exhibit thereto. (e) The Disclosure Package did not, as of the Applicable Time, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; PROVIDED that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 13, or 3 with respect to any Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act filed as an exhibit thereto. (f) The Prospectus and any amendment or supplement thereto did not, as of its date, and will not, as of the Closing Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; PROVIDED, that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 13, or with respect to any Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act filed as an exhibit thereto. (g) The documents incorporated by reference into the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, at the time they were or are filed with the Commission, conform or will conform, as the case may be, with the requirements of the Securities Act, the Rules and Regulations and the Exchange Act and the rules and regulations adopted by the Commission thereunder, and did not or will not, as the case may be, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein (and in the case of documents incorporated by reference into the most recent Preliminary Prospectus and the Prospectus, in light of the circumstances under which they were made) not misleading. (h) The Company has been, since the initial filing of the Initial Registration Statement, and continues to be a "well-known seasoned issuer" and has not been, since the initial filing of the Initial Registration Statement, and is not an "ineligible issuer" (as such terms are defined in Rule 405 under the Securities Act). (i) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and Prospectus fairly present the financial condition, results of operations, changes in shareholders' equity and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and therein specified, and said financial statements have been prepared in accordance with generally accepted principles of accounting, applied on a consistent basis throughout the periods involved (except for changes in accounting principles or the application thereof with which Ernst & Young LLP or another independent registered public accounting firm shall have concurred). Ernst & Young LLP, who examined such financial statements, as set forth in its reports included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and Prospectus, is an independent registered public accounting firm within the meaning of the Securities Act and the Rules and Regulations. The unaudited consolidated financial statements of the Company, if any, included or incorporated by reference in the Registration Statement, any Preliminary Prospectus and Prospectus and the related notes are true, complete and correct, subject to normally recurring changes resulting from year-end audit adjustments, and have been prepared in accordance with the instructions in the Rules and Regulations of the Commission. 4 (j) The Company and each of its Significant Subsidiaries (as defined in Exhibit A hereto) have been duly organized, are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and in good standing as foreign organizations in each jurisdiction in which their respective ownership of property or the conduct of their respective businesses requires such qualification (except where the failure so to qualify would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), results of operations, properties, business or prospects of the Company and its Subsidiaries taken as a whole (a "MATERIAL ADVERSE EFFECT")), and have the organizational power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged. (k) Since the date as of which information is given in the most recent Preliminary Prospectus, except as described in the most recent Preliminary Prospectus and the Prospectus, there has not been any material adverse change in, or adverse development which, individually or in the aggregate, has had or would have a Material Adverse Effect. (l) Neither (i) the execution or delivery hereof by the Company, (ii) the consummation of the transactions contemplated hereby, (iii) the execution and delivery of the Indenture and the Notes by the Company nor (iv) compliance by the Company with all of the provisions of this Agreement, the Indenture and the Notes, will conflict with or result in a breach or violation of, or constitute a default under, the certificate of incorporation, by-laws, partnership agreement or other governing documents of the Company or any of its Subsidiaries, or any agreement, indenture or other instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound, or to which any of their properties is subject, nor will any such action or the performance by the Company of its obligations hereunder violate any law, rule, administrative regulation or decree of any court, or any governmental agency or body having jurisdiction over the Company, its Subsidiaries or any of their respective properties, or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any of its Subsidiaries, except as in each case would not have a Material Adverse Effect. Except for permits, consents, approvals and similar authorizations required under the securities or "Blue Sky" laws of certain jurisdictions, and except for such permits, consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required in connection with the consummation of the transactions contemplated by this Agreement. (m) This Agreement has been duly authorized, executed and delivered by the Company and constitutes the valid and binding agreement of the Company, and is enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (n) None of the Company or any of its Significant Subsidiaries (i) is in violation of its certificate of incorporation or bylaws or other governing documents, (ii) is in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any agreement, indenture or other instrument to which it is a party or by which it is 5 bound or to which any of its properties is subject, except for any such defaults that would not, individually or in the aggregate, have a Material Adverse Effect, or (iii) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property may be subject, except for any such violations that would not, individually or in the aggregate, have a Material Adverse Effect. (o) The Indenture has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture (i) has been duly qualified under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), (ii) complies as to form with the requirements of the Trust Indenture Act and (iii) conforms to the description thereof in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus. (p) The Notes have been duly and validly authorized by the Company for issuance and sale to the Underwriters pursuant to this Agreement and, when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, free of any preemptive or similar rights to subscribe to or purchase the same arising by operation of law or under the charter or by-laws of the Company or otherwise, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, and the Notes conform, or will conform, to the description thereof in the Registration Statement, the Disclosure Package and the Prospectus. Neither the filing of the Registration Statement nor the offering or sale of the Notes as contemplated by this Agreement gives rise to any rights, other than those which have been duly waived or satisfied, for or relating to the registration of any securities of the Company. The capitalization of the Company as of the date of the most recent balance sheet included or incorporated by reference in the most recent Preliminary Prospectus is as set forth in the most recent Preliminary Prospectus and the Prospectus. The Company has all requisite corporate power and authority to issue, sell and deliver the Notes in accordance with and upon the terms and conditions set forth in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. All corporate action required to be taken by the Company for the authorization, issuance, sale and delivery of the Notes to be sold by the Company hereunder has been validly and sufficiently taken. (q) There is no litigation or legal or governmental proceeding to which the Company or any of its Subsidiaries is a party or to which any property of the Company or any of its Subsidiaries is subject or which is pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries that could, individually or in the aggregate, result in a Material Adverse Effect or which is required to be disclosed in the most recent Preliminary Prospectus and the Prospectus and is not disclosed. 6 (r) Neither the Company nor any of its Subsidiaries has taken, directly or indirectly, any action designed to cause or result in, or which might reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (s) The Company is not, nor after giving effect to the offering of the Notes and the application of the proceeds therefrom as described under "Use of Proceeds" in each of the most recent Preliminary Prospectus and the Prospectus will be, an "investment company" or subject to regulation as an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "1940 ACT"). (t) There is and has been no failure on the part of the Company or any of the Company's directors or officers, in their capacities as such, to comply with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith. (u) Each of the Company and its subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect thereto. (v) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its Subsidiaries is made known to the Company's principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective in (x) providing reasonable assurance that material information required to be disclosed by the Company in the reports that the Company is required to file and submit under the Exchange Act is recorded, processed, summarized and reported as and when required, and (y) providing reasonable assurance that material information required to be disclosed by the Company in the reports that it files or submits under Exchange Act is accumulated and communicated to management, including the Company's principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. (w) The Company possesses all licenses, certificates, permits and other authorizations issued by the appropriate national and local U.S. federal and state regulatory authorities necessary to conduct its businesses, except to the extent that the failure to possess any such licenses, permits or other authorizations will not have a Material Adverse Effect on the current or future financial position or results of operations of the Company, and the Company has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, permit or other authorization that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect on the current or future financial position or results of operations of the Company, except as set forth in or as contemplated by the Preliminary Prospectus or the Prospectus. 7 2. PURCHASE OF THE NOTES BY THE UNDERWRITERS. Subject to the terms and conditions and upon the basis of the representations and warranties herein set forth, the Company agrees to issue and sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a price equal to 99% of the principal amount thereof, plus accrued interest, if any, from May 26, 2006, the principal amount of the Notes set forth opposite such Underwriter's name in Schedule I hereto, provided, however, that the total principal amount of Notes to be purchased by all Underwriters shall be the total principal amount of Notes set forth in Schedule I. The Company shall not be obligated to deliver any of the Notes, except upon payment for all the Notes to be purchased on the Closing Date as provided herein. Upon authorization by the Representative of the release of the Notes, the Underwriters propose to offer the Notes to the public as set forth in the Prospectus. 3. DELIVERY OF AND PAYMENT FOR NOTES. Delivery of the Notes will be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036 or at such place or places as mutually may be agreed upon by the Company and the Underwriters, at 10:00 A.M., New York City time, on May 26, 2006 or on such later date not more than three Business Days after the foregoing date as will be determined by you and the Company (the "CLOSING DATE"). Delivery of the Notes will be made to you by or on behalf of the Company against payment of the purchase price therefor by wire transfer of immediately available funds. Delivery of the Notes will be made through the facilities of The Depository Trust Company unless you will otherwise instruct. Delivery of the Notes at the time and place specified in this Agreement is a further condition to the obligations of each Underwriter. 4. COVENANTS OF THE COMPANY. The Company covenants and agrees with each Underwriter that: (a) The Company will file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the Commission's close of business on the second Business Day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 424(b). The Company will notify the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the request of the Representative, any amendments or supplements to the Registration Statement or the Prospectus which, in the opinion of the Representative, may be necessary or advisable in connection with the distribution of the Notes; and the Company will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by you after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). The Company will advise you, promptly when any amendment to the Registration Statement has been filed or becomes (or is deemed to have become) effective or any supplement to the Prospectus or any amended Prospectus has been filed. The Company will prepare one or more final term sheets, containing solely a description of the Notes, substantially in the form of Schedule I hereto and approved by the Representative and file such term sheet or term sheets pursuant to Rule 433(d) under the Securities Act within the time period prescribed by such Rule. The Company will advise you promptly of the issuance 8 by the Commission or any State or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes for offering or sale in any jurisdiction, of the institution of any proceedings for any such purpose, or of receipt by the Company from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations; and the Company will use its best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as possible the lifting or withdrawal thereof. (b) The Company will furnish to each of you and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits other than this Agreement), any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (including any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as you may from time to time reasonably request. (c) During the period in which the Prospectus relating to the Notes (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions hereof and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus or file any document to comply with the Securities Act, the Company will promptly notify you and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representative may from time to time reasonably request. (d) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (e) Whether or not this Agreement becomes effective or is terminated or the sale of the Notes to the Underwriters is consummated, the Company will pay or cause to be paid (A) all fees and expenses (including, without limitation, all registration and filing fees and fees and expenses of the Company's accountants but excluding fees and expenses of counsel for the Underwriters) incurred in connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements therein and all amendments and 9 exhibits thereto), each Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, the Statement of Eligibility and Qualification of the Trustee on Form T-1 filed with the Commission (the "FORM T-1") and any amendments or supplements of the foregoing and any documents incorporated by reference into any of the foregoing, (B) all fees and expenses incurred in connection with the preparation and delivery to the Underwriters of the Notes (including the cost of printing the Notes), (C) the cost of printing, producing, copying and delivering this Agreement, the Indenture, closing documents (including any compilations thereof) and any other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering, purchase, sale and delivery of the Notes (but not, however, legal fees and expenses of counsel to the Underwriters incurred in connection with any of the foregoing), (D) all filing fees and other expenses incurred in connection with the qualification of the Notes under the securities laws of the several jurisdictions as provided in Section 4(j) and the preparation, printing and distribution of a Blue Sky Memorandum (including related fees and expenses of counsel to the Underwriters), (E) any fees required to be paid to rating agencies incurred in connection with the rating of the Notes, (F) the fees, costs and charges of the Trustee and any agent of the Trustee, including the fees and disbursements of counsel for the Trustee, (G) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Notes, and (H) all other costs and expenses incident to the performance of its obligations hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as provided in this Section 4(e), Section 8 and Section 10 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel and any advertising expenses incurred in connection with any offers they may make. If the sale of the Notes provided for herein is not consummated by reason of acts of the Company or changes in circumstances of the Company pursuant to Section 10 hereof which prevent this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed or because any other condition of the Underwriters' obligations hereunder is not fulfilled or if the Underwriters will decline to purchase the Notes for any reason permitted under this Agreement (other than by reason of a default by any of the Underwriters pursuant to Section 10 or if the Underwriters terminate this Agreement under Section 10(a) of this Agreement), the Company will reimburse the several Underwriters for all reasonable out-of-pocket disbursements (including reasonable fees and disbursements of counsel) incurred by the Underwriters in connection with any investigation or preparation made by them in respect of the marketing of the Notes or in contemplation of the performance by them of their obligations hereunder. (f) Until termination of the offering of the Notes, the Company will timely file all documents and amendments to previously filed documents required to be filed by it pursuant to Section 12, 13, 14 or 15(d) of the Exchange Act. (g) The Company will apply the net proceeds from the sale of the Notes as set forth in the Prospectus. (h) The Company will pay the required Commission filing fees relating to the Notes within the time period required by Rule 456(b)(1) of the Rules and Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Rules and Regulations. 10 (i) If required by Rule 430B(h) of the Rules and Regulations, the Company will prepare a prospectus in a form approved by the Representative and to file such prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than may be required by such Rule; and the Company will make no further amendment or supplement to such prospectus that will be disapproved by the Representative promptly after reasonable notice thereof. (j) The Company will cooperate with the Underwriters and with their counsel in connection with the qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; PROVIDED, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (k) The Company will not take, directly or indirectly, any action designed to cause or result in, or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (l) The Company agrees to comply with all the terms and conditions of all agreements set forth in the representation letter of the Company to DTC relating to the approval of the Securities by DTC for "book entry" transfer. (m) For the period beginning the date of this Agreement through the Closing Date, the Company will not, without the prior written consent of the Representative, directly or indirectly, issue, sell, offer to sell, grant any option for the sale of or otherwise dispose of, any securities substantially similar to the Notes. 5. FREE WRITING PROSPECTUSES. (a) The Company represents and warrants to, and agrees with, the Underwriters that it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus (other than the Final Term Sheet) without the prior consent of the Representative; any Issuer Free Writing Prospectus the use of which has been consented to by the Representative is listed on Schedule II hereto. The Company will comply with the requirements of Rule 433 of the Rules and Regulations with respect to any such Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; any such Issuer Free Writing Prospectus will not, as of its issue date and through the time the Notes are delivered pursuant to Section 4 hereof, include any information that conflicts with the information contained in the Registration Statement, the Disclosure Package and the Prospectus; and any such Issuer Free Writing Prospectus, when taken together with the information contained in the Registration Statement, the Disclosure Package and the Prospectus, did not, as of the Applicable Time, does not and will not, as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that no representation or warranty is made as to information contained in 11 or omitted from the Prospectus or Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 13. (b) Each Underwriter represents and warrants to, and agrees with, the Company and each other Underwriter that it has not made, and will not make any offer relating to the Notes that would constitute a "free writing prospectus" (as such term is defined in Rule 405 under the Securities Act) required to be filed with the Commission, without the prior consent of the Company and the Representative. (c) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representative and, if requested by the Representative, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission. 6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the Underwriters hereunder are subject to the accuracy, as of the date hereof and the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 4(a) hereof; all filings (including, without limitation, the Final Term Sheet) required by Rule 424(b) or Rule 433 of the Rules and Regulations shall have been made, and no such filings will have been made without the consent of the Representative; no stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto, preventing or suspending the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or suspending the qualification of the Notes for offering or sale in any jurisdiction shall have been issued; no proceedings for the issuance of any such order shall have been initiated or threatened; no notice of objection of the Commission to use the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations shall have been received by the Company; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to you and complied with to your satisfaction. (b) No Underwriter shall have been advised by the Company or shall have discovered and disclosed to the Company that the Registration Statement, the Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto, contains an untrue statement of fact which in your opinion, or in the opinion of counsel to the Underwriters, is material, or omits to state a fact which, in your opinion, or in the opinion of counsel to the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading. 12 (c) The Underwriters shall have received from Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the validity, issuance and sale of the Notes, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) On the Closing Date, you shall have received the opinion (addressed to the Underwriters) of Wachtell, Lipton, Rosen & Katz, counsel for the Company, dated the Closing Date and in form and substance satisfactory to the Underwriters, to the effect that: (i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the jurisdiction of its incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus; (ii) The Company has all requisite corporate power and authority to issue, sell and deliver the Notes in accordance with and upon the terms and conditions set forth in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus; (iii) The Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the Trust Indenture Act and the rules and regulations thereunder; (iv) The Notes have been duly authorized and executed by the Company for issuance and sale to the Underwriters pursuant to this Agreement and, assuming due authentication of the Notes by the Trustee, upon delivery to the Underwriters against payment therefor in accordance with the terms of this Agreement, will have been validly issued and delivered, will be entitled to the benefits of the Indenture and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions relating to or affecting creditors' rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); (v) Neither the execution or delivery of this Agreement nor consummation of the transactions contemplated hereby will result in a breach or violation of, or constitute a default under, the certificate of incorporation or by-laws of the Company, nor will the performance by the Company of its obligations hereunder violate Applicable Law (as defined below) or (to the knowledge of such counsel) decree (except that such counsel need not express an opinion as to federal or state securities or Blue Sky laws with respect 13 to this subparagraph) of any court or any governmental agency or body having jurisdiction over the Company, its Subsidiaries or their respective properties. Except for permits, consents, approvals and similar authorizations required under the securities or Blue Sky laws of certain jurisdictions and except for such permits, consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required of the Company pursuant to Applicable Law for the valid authorization, issuance, sale and delivery of the Notes; (vi) The Company has all necessary corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by the Company; (vii) To such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or are pending before or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Company; (viii) The Registration Statement as of the Effective Date, and the Prospectus as of its date and as of the Closing Date, and any further amendments or supplements thereto made by the Company as of their respective issue dates as of the Closing Date, complied as to form in all material respects with the applicable requirements of the Securities Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations thereunder (the financial statements or notes thereto or other financial data contained therein or omitted therefrom); (ix) The statements set forth in the most recent Preliminary Prospectus and the Prospectus under the caption "Description of the Notes", insofar as they purport to constitute a summary of the terms of the Notes, and under the caption "U.S. Federal Income Tax Considerations", insofar as they purport to describe the provisions of the laws referred to therein, are accurate and complete in all material respects; and (x) There are no legal proceedings pending or, to the knowledge of such counsel, threatened against the Company or any of its Subsidiaries to which such counsel has given substantive attention or in which such counsel has been engaged to represent the Company or any of its Subsidiaries that are required to be disclosed in the Prospectus and are not disclosed. Such opinion shall also contain a statement that such counsel had participated in the preparation of the Registration Statement and Prospectus (but did not participate in the preparation of any of the documents incorporated by reference therein) and in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company, representatives of the Representative and counsel for the Underwriters, at which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel has not verified, are not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements 14 contained in the Registration Statement or Prospectus (including, in each case, any document filed under the Exchange Act and incorporated by reference therein), no facts have come to such counsel's attention that led them to believe that (i) as of the applicable Effective Date, the Registration Statement or any amendment thereto (other than the financial statements, the notes and schedules thereto and the other financial data contained therein or omitted therefrom, and the exhibits to the Registration Statement, including the Form T-1, the information provided by the Underwriters as specified in Section 13, as to which such counsel need express no belief), including in each case any document filed under the Exchange Act and incorporated by reference therein, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) as of the Applicable Time, the Disclosure Package (other than the financial statements, the notes and schedules thereto and the other financial contained therein, or omitted therefrom, the information provided by the Underwriters as specified in Section 13, and the Road Show Presentation of the Company dated as of May 16, 2006, as to which such counsel need express no belief), including in each case any document filed under the Exchange Act and incorporated by reference therein, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) as of its date and as of the Closing Date, the Prospectus or any supplement or amendment thereto (other than the financial statements, the notes and schedules thereto and the other financial data contained therein or omitted therefrom, and the information provided by the Underwriters as specified in Section 13, as to which such counsel need express no belief), including in each case any document filed under the Exchange Act and incorporated by reference therein, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely, without independent verification, as to matters of fact, to the extent they deem appropriate, on the representations of the Company contained herein and on certificates of responsible officers of the Company and public officials. Such opinion will be limited to the laws of the State of New York, the federal securities laws of the United States and the General Corporation Law of the State of Delaware (collectively, "APPLICABLE LAW"), and such counsel will express no opinion as to the effect on the matters covered by such opinion of the laws of any other jurisdiction. Such opinion may also state that such counsel acted as special counsel to the Company in connection with the offering of the Notes contemplated hereby and did not act, and has not acted, as the Company's regular outside counsel. (e) On the Closing Date, you shall have received the opinion (addressed to the Underwriters) of General Counsel of the Company, dated the Closing Date and in form and substance satisfactory to the Underwriters, to the effect that: (i) The Company is duly qualified to do business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties owned, leased or operated by it makes such qualification necessary (except where the failure to so qualify would not, individually or in the aggregate, have a material 15 adverse effect on the condition (financial or other), results of operations, properties, business or prospects of the Company and its Subsidiaries taken as a whole); (ii) Each of the Company's Significant Subsidiaries has been duly incorporated or formed as a corporation or partnership, as applicable, and is validly existing as a corporation, a general partnership or a limited partnership under the laws of its jurisdiction of incorporation or formation (and each of the Significant Subsidiaries that is a corporation or a limited partnership is in good standing under the laws of its jurisdiction of incorporation or formation), with full corporate or partnership (as applicable) power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus; (iii) To the knowledge of such counsel, except as disclosed in the most recent Preliminary Prospectus and the Prospectus, all of the outstanding shares of capital stock, partnership interests (or such percentage of the partnership interest as is set forth in the respective partnership agreements) or other ownership interests of each Significant Subsidiary are owned directly or indirectly by the Company, free and clear of any perfected security interest; (iv) Neither the execution or delivery of this Agreement nor consummation of the transactions contemplated hereby will result in a breach or violation of, or constitute a default under, the certificate of incorporation, by-laws, partnership agreement or other governing documents of the Significant Subsidiaries or any agreement, indenture or other instrument filed as an exhibit to the Registration Statement or any document incorporated by reference therein; (v) Neither the filing of the Registration Statement nor the offering or sale of the Notes as contemplated by this Agreement gives rise to any rights, other than those which have been waived or satisfied, for or relating to the registration of any securities of the Company or any of its Subsidiaries; (vi) Each document incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus as filed under the Exchange Act complied as to form in all material respects when so filed with the applicable requirements of the Exchange Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or notes thereto and other financial data contained therein); and (vii) The descriptions in the Registration Statement, the most recent Preliminary Prospectus and Prospectus of statutes, regulations, legal or governmental proceedings, to the extent they constitute matters of law and summaries of legal matters are accurate in all material respects. To the knowledge of such counsel, there are no contracts or documents required to be described in the Registration Statement or Prospectus or to be filed as exhibits thereto which are not described or filed as required. (f) On the Closing Date, you shall have received a certificate, dated the Closing Date and addressed to you, signed by the Chairman of the Board or the President or any Senior Vice President and by the Chief Financial Officer of the Company to the effect that: (i) 16 the representations and warranties of the Company contained in this Agreement are true and correct in all material respects, as if made at and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be complied with or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued, no proceeding for that purpose has been initiated or, to the best of their knowledge, threatened, no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Company, and no order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission; (iii) all filings required by Rule 424(b) or Rule 433 of the Rules and Regulations have been made; (iv) the signers of such certificate have carefully examined the Registration Statement and the Prospectus, and any amendments or supplements thereto (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus), and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (v) since the Effective Date of the Initial Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus which has not been so set forth and there has been no document required to be filed under the Exchange Act and the Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus that has not been so filed; and (vi) no event contemplated by Section 6(g) hereof will have occurred. (g) Since the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and in the most recent Preliminary Prospectus (exclusive of any supplement thereto filed subsequent to the date hereof), neither the Company nor any of its Subsidiaries will have sustained any loss by fire, flood, accident or other calamity, or will have become a party to or the subject of any litigation, which is materially adverse to the Company and its Subsidiaries taken as a whole, nor will there have been a material adverse change in the condition (financial or otherwise), results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, regardless of whether arising in the ordinary course of business, which loss, litigation or change, in the judgement of the Representative, will render it impractical or inadvisable to proceed with the payment for and delivery of the Notes. (h) At the time of execution of this Agreement, the Underwriters shall have received from Ernst & Young LLP, a letter, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings. (i) With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of this 17 Agreement (the "INITIAL LETTER"), the Company shall have furnished to the Underwriters a letter (the "BRING-DOWN LETTER") of such accountants, addressed to the Underwriters and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (j) Prior to or on the Closing Date, you shall have been furnished by the Company such additional documents and certificates as you or counsel for the Underwriters may reasonably request. (k) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded to the debt securities of the Company or any of its Subsidiaries by any "nationally recognized statistical rating organization" as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations, and (ii) no such organization shall have publicly announced that it has under surveillance or review with possible negative implications any such debt securities. (l) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by Federal or state authorities; (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the offering or delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Prospectus. All opinions, certificates, letters and documents referred to in this Section 6 will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and to counsel for the Underwriters. The Company will furnish to you conformed copies of such opinions, certificates, letters and other documents in such number as you will reasonably request. If any of the conditions specified in this Section 6 are not fulfilled when and as required by this Agreement, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by you. Any such cancellation will be 18 without liability of the Underwriters to the Company. Notice of such cancellation will be given to the Company in writing, or by telegraph or telephone and confirmed in writing. 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF UNDERWRITERS. Each Underwriter, severally and not jointly, agrees with the Company that: (a) In relation to each Member State of the European Economic Area (each, a "RELEVANT MEMBER STATE"), it has not made and will not make an offer of Notes to the public in that Relevant Member State that would require the publication or approval of a prospectus in relation to the Notes in that Relevant Member State, or where appropriate, another Relevant Member State; subject to such restriction, it may make an offer of the Notes to the public in that Relevant Member State at any time: (i) to legal entities that are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (ii) to any legal entity that has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than (euro)43,000,000 and (3) an annual net turnover of more than (euro)50,000,000, as shown in its last annual or consolidated accounts; or (iii) in any other circumstances that do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. For purposes of this Section 7(a), 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 Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression "Prospectus Directive" means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State. (b) It will comply with applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Notes, or has in its possession or distributes any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus. (c) 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 (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 the Company. (d) 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. 8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and hold harmless each Underwriter from and against any loss, claim, damage or liability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement made by the Company in Section 1 hereof, (ii) any untrue statement or alleged untrue 19 statement of a material fact contained in the Registration Statement (other than in any Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act filed as an exhibit thereto), any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, any Issuer Free Writing Prospectus, any "issuer information" filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, or any "road show" (as defined in Rule 433 of the Rules and Regulations) that does not otherwise constitute an Issuer Free Writing Prospectus, or (iii) the omission or alleged omission to state in the Registration Statement (other than in any Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act filed as an exhibit thereto), any Preliminary Prospectus, the Prospectus, the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, any issuer information or any road show a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action, notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; PROVIDED, HOWEVER, that the Company will not be liable under this Section 8(a) in any such case to the extent, but only to the extent, that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Representative, on behalf of the Underwriters, expressly for use in the preparation of the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus. (b) Each Underwriter severally, but not jointly, will indemnify and hold harmless the Company against any loss, claim, damage or liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, or (ii) the omission or alleged omission to state in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein not misleading and will reimburse the Company promptly after receipt of invoices from the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; PROVIDED, HOWEVER, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in 20 reliance upon and in conformity with written information furnished to the Company by the Representative, on behalf of such Underwriter, expressly for use therein. (c) Promptly after receipt by any indemnified party under Section 8(a) or 8(b) above of notice of any claim or the commencement of any action, the indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that the failure to so notify the indemnifying party will not relieve it from any liability which it may have under this Section 8 except to the extent it has been prejudiced in any material respect by such failure or from any liability which it may have to an indemnified party otherwise than under this Section 8. If any such claim or action will be brought against any indemnified party, and it will notify the indemnifying party thereof, the indemnifying party will be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party will not be liable to the indemnified party under Section 8(a) or 8(b) above for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; except that the Underwriters will have the right to employ a single counsel to represent all of the Underwriters (and to the extent necessary, a single local counsel in each jurisdiction in which proceedings have been brought) who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company under such subsection if (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and in the reasonable judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Underwriters, in which event the fees and expenses of such separate counsel will be paid by the Company. No indemnifying party will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent will not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) above, then each indemnifying party will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in Section 8(a) or 8(b) above (i) in such proportion as is appropriate to 21 reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, or actions in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand will be deemed to be in the same proportion as the total net proceeds from the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. Relative fault will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in the first sentence of this Section 8(d). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in the first sentence of this Section 8(d) will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending against any action or claim which is the subject of this Section 8(d). Notwithstanding the provisions of this Section 8(d), no Underwriter will be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by it and distributed to investors were offered to investors exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this Section 8(d) to contribute are several in proportion to their respective underwriting obligations and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 8(c) above). (e) The obligations of the Company under this Section 8 will be in addition to any liability that the Company may otherwise have, and will extend, upon the same terms and conditions set forth in this Section 8, to the respective officers and directors of the Underwriters and each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of the Underwriters under this Section 8 will be in addition to any liability that the respective Underwriters may otherwise have, and will extend, upon the same terms and conditions, to each director of the Company (including any person who, with his or her consent, 22 is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act. 9. SUBSTITUTION OF UNDERWRITERS. If any Underwriter defaults in its obligation to purchase the principal amount of the Notes which it has agreed to purchase under this Agreement, the non-defaulting Underwriters will be obligated to purchase (in the respective proportions which the principal amount of the Notes set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the principal amount of the Notes the defaulting Underwriter agreed to purchase set forth in Schedule I hereto) the principal amount of the Notes which the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters will not be obligated to purchase any of the Notes if the total principal amount of the Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase exceed 9.09% of the total principal amount of the Notes, and any non-defaulting Underwriters will not be obligated to purchase more than 110% of the principal amount of the Notes set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other underwriters satisfactory to you who so agree, will have the right, but will not be obligated, to purchase (in such proportions as may be agreed upon among them) all of the Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase the Notes that the defaulting Underwriter or Underwriters agreed but failed to purchase within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except for the indemnity and contribution agreements of the Company and the Underwriters contained in Section 8 hereof. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter pursuant to this Section 9. Nothing contained herein will relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the non-defaulting Underwriters or the other underwriters satisfactory to you are obligated or agree to purchase the Notes of a defaulting Underwriter, the Representative may postpone the Closing Date for up to seven full Business Days in order to effect any changes that may be necessary in the Registration Statement or the Prospectus or in any other document or agreement, and to file promptly any amendments or any supplements to the Registration Statement, the Disclosure Package or the Prospectus which in the opinion of the Representative may thereby be made necessary. 10. TERMINATION. Until the Closing Date, this Agreement may be terminated by you by giving notice as hereinafter provided to the Company if (a) the Company will have failed, refused or been unable, at or prior to the Closing Date, to perform any agreement on its part to be performed hereunder; (b) any of the events described in Sections 6(k) and 6(l), shall have occurred; or (c) any other condition to the Underwriters' obligations hereunder is not fulfilled. Any termination of this Agreement pursuant to this Section 10 will be without liability on the part of the Company or any Underwriter, except as otherwise provided in Sections 4(e) and 8 hereof. Any notice referred to above may be given at the address specified in Section 12 hereof in writing or by telegraph or telephone, and if by telegraph or telephone, will be immediately confirmed in writing. 23 11. SURVIVAL OF CERTAIN PROVISIONS. The agreements contained in Section 8 hereof and the representations, warranties and agreements of the Company contained in Sections 1 and 4 hereof will survive the delivery of the Notes to the Underwriters hereunder and will remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party. 12. NOTICES. Except as otherwise provided in the Agreement, (a) whenever notice is required by the provisions of this Agreement to be given to the Company, such notice will be in writing or by telegraph addressed to the Company at 55 Ameriprise Financial Center Minneapolis, MN 55474, Fax (612)671-5108, Attention: General Counsel, and (b) whenever notice is required by the provisions of this Agreement to be given to the several Underwriters, such notice will be in writing or by telegraph addressed to you in care of Lehman Brothers Inc., 745 Seventh Ave, New York, New York 10019, Attention: Debt Capital Markets, Financial Institutions Group (with a copy to the General Counsel at the same address). 13. INFORMATION FURNISHED BY UNDERWRITERS. The Underwriters severally confirm that the information appearing in the list of names of, and principal amount of Notes to be purchased by, each of the Underwriters, the third paragraph and the statements set forth under the caption "Price Stabilization and Short Positions" under the caption "Underwriting" in the most recent Preliminary Prospectus and in the Prospectus constitute the only written information furnished to the Company by the Representative on behalf of the Underwriters, referred to in Sections 1(d), 1(e), 1(f), 8(a) and 8(b) hereof. 14. RESEARCH ANALYST INDEPENDENCE. The Company acknowledges that the Underwriters' research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters' research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters' investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement. 14. NO FIDUCIARY DUTY. The Company acknowledges and agrees that in connection with the offering and the sale of the Notes or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters: (i) no fiduciary or agency relationship between the Company and any other person, on the one hand, and the Underwriters, on the other hand, exists; (ii) the Underwriters are not acting as advisors, expert or otherwise, to the Company, including, without limitation, with respect to the determination of the public offering price of the Notes, and such relationship between the Company, on the one hand, and the Underwriters, on the other hand, is entirely and 24 solely commercial, based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the Company shall be limited to those duties and obligations specifically stated herein; and (iv) the Underwriters and their respective affiliates may have interests that differ from those of the Company. The Company hereby waives any claims that the Company may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering. 15. PARTIES. This Agreement will inure to the benefit of and be binding upon the several Underwriters, the Company and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the Company contained in this Agreement will also be deemed to be for the benefit of the person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act and (b) the indemnity agreement of the Underwriters contained in Section 8 hereof will be deemed to be for the benefit of directors of the Company, officers of the Company who signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement will be construed to give any person, other than the persons referred to in this paragraph, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. 16. DEFINITION OF "BUSINESS DAY" AND "SUBSIDIARY." For purposes of this Agreement, (a) "Business Day" means any day on which the NYSE is open for trading, other than any day on which commercial banks are authorized or required to be closed in New York City, and (b) "Subsidiary" has the meaning set forth in Rule 405 under the Securities Act and includes both partnerships and corporations. 17. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof. 18. HEADINGS. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. 19. COUNTERPARTS. This Agreement may be signed in one or more counterparts, each of which will constitute an original and all of which together will constitute one and the same agreement. 25 Please confirm, by signing and returning to us two counterparts of this Agreement, that you are acting on behalf of yourselves and the several Underwriters and that the foregoing correctly sets forth the Agreement between the Company and the several Underwriters. Very truly yours, AMERIPRISE FINANCIAL, INC. By: /s/ Walter S. Berman ------------------------------- Name: Walter S. Berman ----------------------------------- Title: Senior Vice President and Treasurer ----------------------------------- Confirmed and accepted as of the date first above mentioned LEHMAN BROTHERS INC. By: /s/ Martin Goldberg --------------------------------- Name: Martin Goldberg ------------------------- Title: Senior Vice President ------------------------- J.P. MORGAN SECURITIES INC. By: /s/ Jose C. Padilla --------------------------------- Name: Jose C. Padilla ------------------------- Title: Vice President ------------------------- SCHEDULE I Underwriting Agreement dated May 23, 2006 PRINCIPAL AMOUNT OF NOTES TO BE UNDERWRITER PURCHASED - ----------- --------- Lehman Brothers Inc...................................$350,000,000 J.P. Morgan Securities Inc.............................150,000,000 ------------ Total.................................................$500,000,000 ============ SCHEDULE II
TERM SHEET FOR AMERIPRISE FINANCIAL, INC. 7.518% JUNIOR SUBORDINATED NOTES DUE 2066 ISSUER: Ameriprise Financial, Inc. (NYSE Symbol: AMP) SECURITIES: 7.518% Junior Subordinated Notes due 2066 LEGAL FORMAT: SEC Registered AMOUNT: $500,000,000 CUSIP: 03076C AC 0 RATINGS: (1) Moody's Investors Service: Baa2 Standard & Poor's: BBB Fitch: BBB+ A.M. Best: bbb SETTLEMENT DATE: May 26, 2006 (T+3) MATURITY DATE: June 1, 2066 FIXED RATE PERIOD: 7.518% coupon paid semi-annually in arrears until June 1, 2016, payable on June 1 and December 1, commencing December 1, 2006, subject to Company's right to defer FLOATING RATE PERIOD: From June 1, 2016, at a floating rate of 3-month LIBOR (Telerate Page 3750) plus a margin of 290.5 basis points, payable quarterly in arrears on March 1, June 1, September 1 and December 1, subject to Company's right to defer BENCHMARK TREASURY RATE: 5.068% (UST 5.125% due May 15, 2016) SPREAD TO BENCHMARK TREASURY: 245 basis points (2.450%) DAY COUNT CONVENTION: 30/360 (fixed rate period), Actual/360 (floating rate period) REDEMPTION AT PAR: First call date of June 1, 2016 and thereafter MAKE-WHOLE CALL FOR TAX EVENT: Discounted present value of Treasury plus 50 basis points MAKE-WHOLE CALL FOR OTHER REASON: Discounted present value of Treasury plus 40 basis points PUBLIC OFFERING PRICE: $1,000 NET PROCEEDS AFTER EXPENSES TO AMERIPRISE: $494,000,000 SHARE CAP: 55,000,000 shares of common stock of Ameriprise Financial, Inc. DENOMINATIONS: $1,000 STRUCTURING ADVISOR: Lehman Brothers Inc. JOINT BOOKRUNNERS: Lehman Brothers Inc. and J.P. Morgan Securities Inc. ALLOCATION: PRINCIPAL AMOUNT ------------------------- LEHMAN BROTHERS INC. $ 350,000,000 J.P. MORGAN SECURITIES INC. 150,000,000 ------------------------- TOTAL $ 500,000,000
(1) An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and assumptions, as they deem appropriate. The rating of the notes should be evaluated independently from similar ratings of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency. OTHER INFORMATION As adjusted to give effect to this offering, as of March 31, 2006 Ameriprise and its subsidiaries would have had $2,421 million in total short- and long-term debt (including non-recourse debt) and $9,762 million of total capitalization (including non-recourse debt) on a consolidated basis. On May 16, 2006, the Company filed a Current Report on Form 8-K pursuant to Item 8.01 of such Form, which is incorporated by reference into the Prospectus Supplement. On May 17, 2006, the Company amended such report. THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE "SEC") FOR THIS OFFERING. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS FOR THIS OFFERING IN THAT REGISTRATION STATEMENT, AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY SEARCHING THE SEC ONLINE DATABASE (EDGAR(R)) AT WWW.SEC.GOV. ALTERNATIVELY, YOU MAY OBTAIN A COPY OF THE PROSPECTUS FROM LEHMAN BROTHERS INC. BY CALLING 888-603-5847 OR J.P. MORGAN SECURITIES INC. BY CALLING COLLECT 212-834-4533. OTHER ISSUER FREE WRITING PROSPECTUSES Road Show Presentation by the Company Related to the Offering of Junior Subordinated Notes due 2066 dated as of May 2006 EXHIBIT A Underwriting Agreement dated May 23, 2006 As used in the Underwriting Agreement, the "Significant Subsidiaries" of the Company are as follows and include any one or more subsidiaries of the Company that shall succeed to all or substantially all of the business of any of the following subsidiaries or succeed to the ownership of all or substantially all of the property and assets of any of the following subsidiaries: American Enterprise Investment Services, Inc. Ameriprise Certificate Company Ameriprise Financial Services, Inc. IDS Life Insurance Company IDS Property Casualty Insurance Company Threadneedle Asset Management Holdings Ltd. RiverSource Investments, LLC EX-4 3 suppind.txt (EXHIBIT 4.1) Exhibit 4.1 FIRST SUPPLEMENTAL JUNIOR SUBORDINATED INDENTURE BETWEEN AMERIPRISE FINANCIAL, INC. AND U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE ---------------------------------------- DATED AS OF MAY 26, 2006 ---------------------------------------- 7.518% JUNIOR SUBORDINATED NOTES DUE 2066 TABLE OF CONTENTS PAGE ARTICLE I DEFINITIONS.........................................................1 Section 1.01 Definition of Terms...........................................1 ARTICLE II TERMS OF THE NOTES................................................10 Section 2.01 Designation and Principal Amount.............................10 Section 2.02 Issue Date; Maturity.........................................10 Section 2.03 Place of Payment and Surrender for Registration of Transfer..10 Section 2.04 Registered Securities; Form; Denominations; Depositary.......10 Section 2.05 Interest.....................................................11 Section 2.06 Optional Deferral Of Interest................................12 Section 2.07 Mandatory Deferral of Interest...............................13 Section 2.08 Deferral of Interest in General..............................16 Section 2.09 Right to Optional Redemption by the Company..................16 Section 2.10 Events of Default............................................17 Section 2.11 Covenant Defaults............................................17 Section 2.12 Designation of Depositary....................................19 Section 2.13 Conversion...................................................19 Section 2.14 Definitive Form of Notes.....................................19 Section 2.15 Company Reports..............................................19 Section 2.16 Modification of Indenture....................................19 Section 2.17 Other........................................................19 ARTICLE III COVENANTS........................................................19 Section 3.01 Limitation on Company Payments...............................19 Section 3.02 Alternative Coupon Satisfaction Mechanism....................20 ARTICLE IV SUBORDINATION.....................................................21 Section 4.01 Senior Indebtedness..........................................21 ARTICLE V MISCELLANEOUS......................................................22 Section 5.01 Meetings and Voting..........................................22 Section 5.02 Ratification of Indenture....................................23 Section 5.03 Trustee Not Responsible for Recitals.........................23 Section 5.04 Governing Law................................................23 Section 5.05 Severability.................................................23 Section 5.06 Counterparts.................................................23 Section 5.07 Successors and Assigns.......................................23 Exhibit A FIRST SUPPLEMENTAL JUNIOR SUBORDINATED INDENTURE, dated as of May 26, 2006 (this "FIRST SUPPLEMENTAL INDENTURE"), between AMERIPRISE FINANCIAL, INC., a Delaware corporation (the "COMPANY"), having its principal executive office at 707 2nd Avenue South, Minneapolis, Minnesota 55474, and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the "TRUSTEE"), having its principal corporate trust office at 60 Livingston Avenue, St. Paul, Minnesota 55107-2292 supplementing the Junior Subordinated Indenture, dated as of May 5, 2006, between the Company and the Trustee (the "BASE INDENTURE," together with this First Supplemental Indenture, the "INDENTURE"). The Company executed and delivered the Base Indenture to the Trustee to provide for the issuance from time to time of its junior subordinated notes, debentures, bonds or other evidences of indebtedness (hereinafter generally called the "DEBT SECURITIES," and individually, a "DEBT SECURITY") to be issued in one or more series as might be determined by the Company under the Base Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Base Indenture; Pursuant to the terms of this First Supplemental Indenture, the Company desires to provide for the establishment of a new series Debt Securities to be known as the "7.518% Junior Subordinated Notes due 2066" (the "NOTES"), the form and substance of such Notes and the terms, provisions and conditions thereof to be as set forth in the Indenture; The Company has requested that the Trustee execute and deliver this First Supplemental Indenture. All requirements necessary to make this First Supplemental Indenture a valid instrument in accordance with its terms (and to make the Notes, when duly executed by the Company and duly authenticated and delivered by the Trustee, the valid and enforceable obligations of the Company) have been performed, and the execution and delivery of this First Supplemental Indenture have been duly authorized in all respects. NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportional benefit of all Holders of Notes, as follows: ARTICLE I DEFINITIONS Section 1.01 DEFINITION OF TERMS. Unless the context otherwise requires: (a) a term not defined herein that is defined in the Base Indenture has the same meaning when used in this First Supplemental Indenture; (b) a term defined anywhere in this First Supplemental Indenture has the same meaning throughout; (c) the singular includes the plural and vice versa; (d) unless otherwise specified, any reference to a Section or Article is to a Section or Article of this First Supplemental Indenture; (e) headings are for convenience of reference only and do not affect interpretation; (f) any reference herein to an agreement entered into in connection with the issuance of securities contemplated therein as of May 26, 2006 shall mean such agreement as it may be amended, modified or supplemented in accordance with its terms; and (g) the following terms have the following meanings: "3-MONTH LIBOR" means, with respect to an Interest Payment Period, the rate (expressed as a percentage per year) for deposits in U.S. dollars for a 3-month period that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the second London Banking Day immediately preceding the first day of such Interest Payment Period. The term "Telerate Page 3750" means the display on MoneyLine Telerate page 3750 or any successor service or page for the purpose of displaying the London interbank offered rates of major banks. If 3-Month LIBOR cannot be determined as described above, the Company shall select four major banks in the London interbank market and shall request that the principal London offices of those four selected banks provide their offered quotations to prime banks in the London interbank market at approximately 11:00 a.m., London time, on the second London Banking Day immediately preceding the first day of the applicable Interest Payment Period. These quotations will be for deposits in U.S. dollars for a 3-month period. Offered quotations must be based on a principal amount equal to an amount that is representative of a single transaction in U.S. dollars in the market at the time. If two or more quotations are provided, 3-Month LIBOR for the Interest Payment Period will be the arithmetic mean of those quotations. If fewer than two quotations are provided, the Company will select three offered rates quoted by three major banks in New York City, on the second London Banking Day immediately preceding the first day of the applicable Interest Payment Period. The rates quoted will be for loans in U.S. dollars, for a 3-month period. Rates quoted must be based on a principal amount equal to an amount that is representative of a single transaction in U.S. dollars in the market at the time. If fewer than three New York City banks selected by the Company are quoting rates, 3-Month LIBOR for the applicable interest payment period will be the same as for the immediately preceding Interest Payment Period or, if a Fixed Rate of interest applies to such immediately preceding Interest Payment Period, the same as for the most recent fiscal quarter for which 3-month LIBOR can be determined. "ADJUSTED STOCKHOLDERS' EQUITY AMOUNT" means, as of any fiscal quarter end, the stockholders' equity of the Company as reflected on the Company's consolidated GAAP balance sheet as of such fiscal quarter end, minus (i) accumulated other comprehensive income as reflected on such consolidated balance sheet and (ii) any increase in stockholders' equity resulting from the issuance of preferred stock during such quarter. "ALTERNATIVE COUPON SATISFACTION MECHANISM has the meaning set forth in Section 3.02(a). 2 "ANNUAL STATEMENT" means, as to a Life Insurance Subsidiary, the annual statement of such Life Insurance Subsidiary containing its statutory balance sheet and income statement as required to be filed by it with one or more state insurance commissioners or other state insurance regulatory authorities. "AUTHORIZED CONTROL LEVEL" has the meaning specified in subsection J of Section 1 (or the relevant successor section, if any) of the Model Act. "BANKRUPTCY DEFAULT" means an Event of Default specified in clause (e) or (f) of Section 7.01 of the Base Indenture. "BASE INDENTURE" has the meaning set forth in the Recitals. "BENCHMARK QUARTER" has the meaning set forth in Section 2.07(b)(ii). "BUSINESS DAY" means any day which is not a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies located in New York City are authorized or obligated by law to close. "CALCULATION AGENT" means U.S. Bank National Association, or such other Person as is appointed by the Company in its place. "COMMERCIALLY REASONABLE EFFORTS" by the Company to sell Common Stock means commercially reasonable efforts to complete the offer and sale of the Common Stock to third parties that are not Subsidiaries of the Company in public offerings or private placements; provided, that the Company shall be deemed to have used made Commercially Reasonable Efforts during a Market Disruption Event regardless of whether the Company makes any offers or sales during such Market Disruption Event. For the avoidance of doubt, the Company will not be considered to have used Commercially Reasonable Efforts to effect a sale of Qualifying Securities, other than during a Market Disruption Event, if the Company determines to not pursue or complete such sale solely due to pricing considerations. "COMMISSION" means the United States Securities and Exchange Commission. "COMMON STOCK" means the common stock of the Company, par value $0.01 per share. "COMPANY" has the meaning set forth in the Recitals. "COMPANY ACTION LEVEL" has the meaning specified in subsection J of Section 1 (or the relevant successor section, if any) of the Model Act. "COMPARABLE TREASURY ISSUE" means the U.S. Treasury security selected by the Quotation Agent as having a term comparable to the period from the Redemption Date to June 1, 2016 that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities with a term comparable to such period. 3 "COMPARABLE TREASURY PRICE" means, with respect to a Redemption Date (1) the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations or (2) if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations. "COMPOUNDED INTEREST" means additional interest on any accrued and unpaid interest to the extent permitted by applicable law, at the from time to time then applicable Fixed Rate compounded semi-annually, or at the from time to time then applicable Floating Rate compounded quarterly, as the case may be. "COVENANT DEFAULT" means a default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than an Event of Default as defined in Section 2.10 hereof or a covenant or warranty that has been included solely for the benefit of Debt Securities of another series), and a continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of a majority in principal amount of the Outstanding Debt Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default." "COVERED LIFE INSURANCE SUBSIDIARIES" means, as of any year end, Life Insurance Subsidiaries that account for 80% or more of the combined general account admitted assets of the Company's Life Insurance Subsidiaries as of such year end. The Company's Covered Life Insurance Subsidiaries as of a year end will be identified by first ranking the Life Insurance Subsidiaries of the Company from largest to smallest based upon the amount of each such Life Insurance Subsidiary's general account admitted assets and then, beginning with the Life Insurance Subsidiary that has the largest amount of general account admitted assets as of such year end, identifying such Life Insurance Subsidiaries as Covered Life Insurance Subsidiaries until the ratio of the combined general account admitted assets of the Life Insurance Subsidiaries so identified to the combined general account admitted assets of all of the Life Insurance Subsidiaries as of such year end equals or exceeds 80%. "DEBT SECURITIES" or "DEBT SECURITY" has the meaning set forth in the Recitals. "DTC" means The Depository Trust Company, a New York corporation, and its successors. "EXTENSION PERIOD" means an Optional Extension Period or a Trigger Period or a combination thereof, whether or not consecutive. An Extension Period shall commence of the first Interest Payment Date on which interest is deferred (whether due to an optional deferral or the occurrence of a Trigger Event) and will not be considered terminated until the first date thereafter when all accrued and unpaid interest, together with any compounded interest, has been paid in full. "FIRST SUPPLEMENTAL INDENTURE" has the meaning set forth in the Recitals. "FIXED RATE" has the meaning set forth in Section 2.05(a)(i). 4 "FIXED RATE INTEREST PAYMENT DATE" has the meaning set forth in Section 2.05(a)(i). "FIXED RATE PERIOD" means from the date of initial issuance to June 1, 2016. "FLOATING RATE" has the meaning set forth in Section 2.05(b). "FLOATING RATE INTEREST PAYMENT DATE" has the meaning set forth in Section 2.05(b). "FLOATING RATE PERIOD" means the period from June 1, 2016 to the Stated Maturity. "FOREGONE INTEREST" has the meaning set forth in Section 2.07(f). "GAAP" means, at any date or for any period, U.S. generally accepted accounting principles as in effect on such date or for such period. "GLOBAL NOTE" has the meaning set forth in Section 2.04(a). "H.15(519)" means the weekly statistical release designated as such, or any successor publication, published by the Federal Reserve System Board of Governors, available through the world-wide-web site of the Board of Governors of the Federal Reserve System at HTTP://WWW.FEDERALRESERVE.GOV/RELEASES/H15/ or any successor site or publication. "INDENTURE" has the meaning set forth in the Recitals. "INTEREST PAYMENT DATE" means a Fixed Rate Interest Payment Date or a Floating Rate Interest Payment Date. "INTEREST PAYMENT PERIOD" means, during the Fixed Rate Period, any semi-annual period, and during the Floating Rate Period, any quarterly period, during which interest accrues pursuant to this Indenture. "LIFE INSURANCE SUBSIDIARY" means any of the Company's subsidiaries that is organized under the laws of any state in the United States and is licensed as a life insurance company in any state in the United States but does not include any subsidiary of a Life Insurance Subsidiary. "LONDON BANKING DAY" means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market. "MAKE-WHOLE REDEMPTION AMOUNT" will be equal to the greater of: (i) the principal amount of the Notes then outstanding; and (ii) the sum of the present value of the aggregate principal amount outstanding of the Notes on the Interest Payment Date falling on June 1, 2016 together with the present values of scheduled semi-annual interest payments from 5 the date fixed for redemption through and including the Interest Payment Date on June 1, 2016, in each case discounted to the date fixed for redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus (x) in the case of a Tax Event, 50 basis points, and (y) in the case of a redemption for any other reason, 40 basis points, plus, in each of cases (i) and (ii), any accrued and unpaid interest, together with any Compounded Interest to the date of redemption, as calculated by the Quotation Agent. "MANDATORILY DEFERRED INTEREST" means all interest deferred pursuant to Section 2.07, as then accrued and unpaid, together with Compounded Interest thereon, if any. "MARKET DISRUPTION EVENT" means the occurrence or existence of any of the following events or sets of circumstances: (i) the Company is required to obtain the consent or approval of its shareholders or a regulatory body (including, without limitation, any securities exchange) or governmental authority to issue common stock and such consent or approval has not yet been obtained despite the Company's Commercially Reasonable Efforts to obtain such consent or approval; (ii) trading in securities generally on the New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market, or trading in any securities of the Company (or any options or futures contracts related to the securities of the Company) on any exchange or in the over-the-counter market is suspended or the settlement of such trading generally is materially disrupted or minimum prices are established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (iii) a material disruption or banking moratorium shall have occurred in commercial banking or securities settlement or clearance services in the United States; (iv) there is such a material adverse change in general domestic or international economic, political or financial conditions, including without limitation as a result of terrorist activities, or the effect of international conditions on the financial markets in the United States shall be such, as to make it, in the Company's judgment, impracticable to proceed with the offer and sale of capital stock; or (v) an event occurs and is continuing as a result of which the offering document for such offer and sale of securities would, in the judgment of the Company, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and either (1) the disclosure of that event at such time, in the judgment of the Company, would have a material adverse effect on the business of the 6 Company or (2) the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which would impede the ability of the Company to consummate such transaction, provided that no single suspension period contemplated by this subsection (v) may exceed 90 consecutive days and multiple suspension periods contemplated by this subsection (v) may not exceed an aggregate of 180 days in any 360-day period. "MODEL ACT" means the NAIC Risk-Based Capital for Insurers Model Act as included in the NAIC's Model Laws, Regulations and Guidelines as of May 26, 2006 and as hereinafter amended, modified or supplemented. "NAIC" means the National Association of Insurance Commissioners. "NOTES" or "NOTE" has the meaning set forth in the Recitals. "OPINION OF COUNSEL" means the written opinion of counsel rendered by an independent law firm which shall be reasonably acceptable to the Trustee. "OPTIONAL EXTENSION PERIOD" has the meaning set forth in Section 2.06(a). "OPTIONALLY DEFERRED INTEREST" means all interest deferred pursuant to Section 2.06, as then accrued and unpaid, together with Compounded Interest thereon, if any. "PAR REDEMPTION AMOUNT" means a cash redemption price of 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, together with Compounded Interest thereon, to the Redemption Date. "PARITY DEBT SECURITIES" means debt securities that rank pari passu with the Notes. "PARITY GUARANTEES" means guarantees that rank pari passu with the Notes. "PAYING AGENT" shall initially be U.S. Bank National Association. The Company may change the Paying Agent without notice to any Holder. "PRIMARY TREASURY DEALER" means a primary U.S. government securities dealer in New York City. "QUALIFYING SECURITIES" means (i) the capital stock of the Company or (ii) other securities or combinations of securities which, as determined in good faith by the Company's board of directors, rank equally with or junior to the Notes and have a term of comparable duration, comparable deferral features and replacement intent provisions comparable to those of the Notes, except that if the Company issues securities to any of its subsidiaries, such securities will be deemed to be Qualifying Securities only if such subsidiary receives net proceeds in an equal or greater amount from the contemporaneous issuance to a person other than the Company or its other subsidiaries of securities having the characteristics described above, as determined in good faith by the Company's board of directors. 7 "QUOTATION AGENT" means one of the Reference Treasury Dealers appointed by the Company. "RBC INSTRUCTIONS" means the risk-based capital report including risk-based capital instructions adopted by the NAIC, as these risk-based capital instructions may be amended by the NAIC from time to time in accordance with the procedures adopted by the NAIC. "REFERENCE TREASURY DEALER" means (1) Lehman Brothers Inc. and (2) any additional Primary Treasury Dealers selected by the Company and their successors; provided, however, that if any of them ceases to be a Primary Treasury Dealer the Company will substitute therefor another Primary Treasury Dealer. "REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date. "REGULAR RECORD DATE" has the meaning set forth in Section 2.05(f). "RISK-BASED CAPITAL RATIO" means the ratio calculated from the reports by insurance companies to their regulators as of the end of each year in accordance with prescribed procedures, as in effect from time to time. The ratio measures the relationship of Total Adjusted Capital relative to Company Action Level. For all Covered Life Insurance Subsidiaries, calculated on a combined basis, this ratio equals the sum of Total Adjusted Capital amounts for Covered Life Insurance Subsidiaries divided by the sum of Company Action Level amounts for those same subsidiaries. "SECURITY REGISTRAR" shall initially be U.S. Bank National Association. The Company may change the Security Registrar without notice to any Holder. "SENIOR INDEBTEDNESS" has the meaning set forth in Section 4.01. "SHARE CAP AMOUNT" has the meaning set forth in Section 3.02(b). "STATED MATURITY" has the meaning set forth in Section 2.02. "TAX EVENT" means the receipt by the Company of an Opinion of Counsel, rendered by a law firm with experience in such matters, to the effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations or (c) a threatened challenge asserted in connection with an audit of the Company or any of its Subsidiaries, or a threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes, which amendment or change is effective or which pronouncement or decision is announced or which challenge occurs on or after the date of issuance the Notes, there is more than an insubstantial increase in the risk that interest accruing or payable by the 8 Company on the Notes is not, or at any time subsequent to the Company's receipt of such Opinion of Counsel, shall not be, wholly deductible by Company for United States federal income tax purposes. "TIA COVENANT DEFAULT" means a Covenant Default resulting from a breach of the provisions of Section 9.04 of the Base Indenture to the extent such provisions are mandated by the Trust Indenture Act of 1939, as amended. "TOTAL ADJUSTED CAPITAL" means the sum of (1) an insurer's statutory capital and surplus as determined in accordance with the statutory accounting applicable to the annual financial statements required to be filed by the Covered Life Insurance Subsidiary under applicable laws and regulations; and (2) such other items, if any, as the RBC Instructions may provide. "TRAILING FOUR QUARTERS CONSOLIDATED NET INCOME AMOUNT" means, for any fiscal quarter, the sum of the Company's consolidated GAAP net income for the four fiscal quarters ending as of the last day of such fiscal quarter. "TREASURY RATE" means the yield, under the heading that represents the average for the week immediately prior to the applicable Redemption Date, appearing in the most recently published statistical release designated "H.15(519)" or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the end of the relevant Interest Payment Period, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month). If such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, "Treasury Rate" means the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date. "TRIGGER DETERMINATION DATE" has the meaning set forth in Section 2.07(b). "TRIGGER EVENT" has the meaning set forth in Section 2.07(b). "TRIGGER PERIOD" has the meaning set forth in Section 2.07(a). "TRUSTEE" has the meaning set forth in the Recitals. 9 ARTICLE II TERMS OF THE NOTES Pursuant to Section 3.01 of the Base Indenture, the Notes are hereby established with the following terms and other provisions: Section 2.01 DESIGNATION AND PRINCIPAL AMOUNT. (a)There is hereby authorized a series of Debt Securities designated the "7.518% Junior Subordinated Notes due 2066," in the initial aggregate principal amount of $500,000,000. (b) The Company may, from time to time, subject to compliance with any other applicable provisions of this Indenture but without the consent of the Holders, create and issue pursuant to this Indenture an unlimited principal amount of additional Notes (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes, except that any such additional Notes (i) may have a different issue date and issue price from other outstanding Notes and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than is payable on other outstanding Notes. Such additional Notes shall constitute part of the same series of Notes hereunder, unless any such adjustment pursuant to this Section 2.01(b) shall cause such additional Notes to constitute, as determined pursuant to an Opinion of Counsel, a different class of securities than the original series of Notes for U.S. federal income tax purposes. Section 2.02 ISSUE DATE; MATURITY. The Notes shall be issued as of May 26, 2006; and the stated maturity of the principal amount of the Notes shall be June 1, 2066 (the "STATED MATURITY"). Section 2.03 PLACE OF PAYMENT AND SURRENDER FOR REGISTRATION OF TRANSFER. Payment of principal of (and premium, if any) and interest on Notes shall be made, the transfer of Notes will be registrable and Notes will be exchangeable for Notes of other denominations of a like principal amount at the office or agency of the Company maintained for such purpose, initially the Corporate Trust Office of the Trustee. Payment of any principal (and premium, if any) and interest on Notes issued as Global Notes shall be payable by the Company through the Paying Agent to the Depositary in immediately available funds. At the Company's option, interest on Notes issued in physical form may be payable (i) by a U.S. Dollar check drawn on a bank in The City of New York mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) upon application to the Security Registrar not later than the relevant Regular Record Date by a Holder of a principal amount of the Notes in excess of $5,000,000, by wire transfer in immediately available funds, which application shall remain in effect until the Holder notifies, in writing, the Security Registrar to the contrary. Section 2.04 REGISTERED SECURITIES; FORM; DENOMINATIONS; DEPOSITARY. (a)The Notes shall be issued in fully registered form as Registered Securities and shall be initially issued in the form of one or more permanent Global Notes (the "GLOBAL NOTES"), in the form of Exhibit A hereto. The Notes shall not be issuable in bearer form. The terms and provisions contained in the form of Note shall constitute, and are hereby expressly made, a part of the Indenture, and the 10 Company and the Trustee, by their execution and delivery of the Indenture, expressly agree to such terms and provisions and to be bound thereby. (b) The Notes shall be issued in denominations of $1,000 and whole multiples thereof. Section 2.05 INTEREST. (a) FIXED RATE PERIOD. (i) Subject to the provisions of Section 2.06, Section 2.07 and Section 2.08, during the Fixed Rate Period, the Notes shall accrue interest at a rate per annum of 7.518% (the "FIXED RATE") of the principal amount of $1,000 per Note, payable semi-annually in arrears on June 1 and December 1 of each year (each, a "FIXED RATE INTEREST PAYMENT DATE"), commencing on December 1, 2006, to the Person in whose name the Note is registered in the Security Register at the close of business on the Regular Record Date. (ii) The amount of interest payable for any Interest Payment Period during the Fixed Rate Period will be computed as follows: (A) for any full Interest Payment Period, on the basis of a 360-day year of twelve 30-day months; (B) for any period shorter than a full Interest Payment Period, on the basis of a 30-day month; and (C) for any period shorter than a 30-day month, on the basis of the actual number of days elapsed in the 30-day month. (iii) In the event that any Fixed Rate Interest Payment Date is not a Business Day, payment of the interest payable on such Fixed Rate Interest Payment Date shall be made on the next succeeding day that is a Business Day without any interest or other payment in respect of any such delay. (b) FLOATING RATE PERIOD. (i) Subject to the provisions of Section 2.06, Section 2.07 and Section 2.08, during the Floating Rate Period, the Notes shall accrue interest at an annual rate of 3-month LIBOR plus a margin equal to 290.5 basis points (the "FLOATING RATE"), payable quarterly in arrears on March 1, June 1, September 1 and December 1 of each year (each, a "FLOATING RATE INTEREST PAYMENT DATE"), commencing on June 1, 2016 to the Person in whose name the Note is registered in the Security Register at the close of business on the applicable Regular Record Date. (ii) The amount of Floating Rate interest payable on the Notes for any Interest Payment Period will be computed on the basis of a 360-day year and the actual number of days elapsed in the 360-day year. (iii) If a scheduled Floating Rate Interest Payment Date is not a Business Day, such Interest Payment Date shall be postponed to the next succeeding day that is a Business Day; provided that if such Business Day is in the next succeeding calendar month, such Interest Payment Date shall be the immediately preceding Business Day. 11 (c) PERIOD OF ACCRUAL. Subject to Section 2.05(a)(iii), interest will accrue from and including the last date in respect of which interest has been paid or duly provided for to but excluding the Interest Payment Date on which the interest is actually paid or the Stated Maturity, as the case may be. (d) DUTIES OF CALCULATION AGENT. The Calculation Agent will calculate the Floating Rate for the Notes and the amount of interest payable on each Floating Rate Interest Payment Date. Promptly upon such determination, the Calculation Agent will notify the Company and, if the Trustee is not then serving as the Calculation Agent, the Trustee, of the Floating Rate for the new quarterly Interest Payment Period. The Floating Rate determined by the Calculation Agent, absent manifest error, will be binding and conclusive on the Company, the Holders and the Trustee. All percentages resulting from any interest rate calculation will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point. (e) UNPAID INTEREST. Interest not paid on any Interest Payment Date, including any interest deferred during any Extension Period, will accrue and compound at the from time to time then applicable interest rate (whether semi-annually at the Fixed Rate or quarterly at the Floating Rate, as the case may be). Subject to Section 2.05(a)(iii), such interest will accrue and compound to the date that it is actually paid. (f) REGULAR RECORD DATES. The Regular Record Dates for the Notes shall be: (i) as long as the Notes remain in book-entry only form or are represented by a Global Note, the Business Day next preceding the corresponding Interest Payment Date; or (ii) if such Notes are issued in definitive form, on such Business Day selected by the Company that is at least one Business Day prior to the corresponding Interest Payment Date. (g) ALLOCATION OF INTEREST PAYMENTS. Any interest payment made (including any interest payment made pursuant to the Alternative Coupon Satisfaction Mechanism) will first be allocated to payment of the interest due and payable on that Interest Payment Date. Any interest payment in excess of the amount of the interest due and payable on that Interest Payment Date will be applied first against any then-existing accrued and unpaid interest, in chronological order beginning with the earliest unpaid Interest Payment Date, and then against any accrued and unpaid Compounded Interest. Section 2.06 OPTIONAL DEFERRAL OF INTEREST. (a) OPTIONAL EXTENSION PERIOD. Subject to Section 2.08 and Section 3.02, as long as no Event of Default has occurred and is continuing, and as long as no Trigger Event has occurred and no Trigger Period caused thereby is continuing, the Company shall have the right at any time and from time to time, to defer payments of interest on the Notes by extending the Interest Payment Period on the Notes for a period (an "OPTIONAL EXTENSION PERIOD") not exceeding ten years following the first Interest Payment Date in such period on which interest was deferred, during which Optional Extension Period deferred interest on the Notes shall not be 12 due and payable but will continue to accrue and compound semi-annually or quarterly, as applicable, to the extent permitted by applicable law, at the then applicable rate of interest on the notes; provided that no such Optional Extension Period may end on a date other than an Interest Payment Date or extend beyond the stated maturity of the Notes. At the end of any Optional Extension Period, the Company may settle any and all Optionally Deferred Interest with cash from any source until the date that is five years following the first Interest Payment Date as of which the Company commenced an Optional Extension Period on the Notes. Thereafter, subject to the occurrence of a Market Disruption Event, the Company must immediately and continuously use its Commercially Reasonable Efforts to sell shares of Common Stock and to use the proceeds therefrom to pay any outstanding Optionally Deferred Interest in accordance with the provisions of Section 3.02. If a Trigger Event occurs after commencement of an Optional Extension Period, the Optional Extension Period will be deemed suspended for so long as the Trigger Period is continuing. Once the Trigger Period is no longer continuing, the right of the Company to optionally defer payment of interest will continue, subject to the limitations and consequences described herein. The first Interest Payment Date on which the Company defers the payment of any interest (whether due to an optional deferral or the occurrence of a Trigger Event) will commence an Optional Extension Period. This Optional Extension Period will not be considered terminated until the first date thereafter when all accrued and unpaid interest, together with any Compounded Interest, has been paid by the Company. An Optional Extension Period may not, under any circumstances, extend beyond the tenth anniversary of its commencement or beyond the stated maturity date of the Notes. When and if an Optional Extension Period is terminated because the Company has paid in full all accrued and unpaid interest then owed by the Company, together with any Compounded Interest thereupon, the Company may commence a new Optional Extension Period, subject to the requirements of this Section 2.06, there being no limit to the number of such new Optional Extension Period that the Company may commence. (b) COVENANTS. During an Optional Extension Period, the Company shall be subject to the limitations set forth in Section 3.01 of this First Supplemental Indenture. (c) NOTICES. The Company shall give notice of its election to defer payments of interest on the Notes for an Optional Extension Period at least ten Business Days prior to the first Interest Payment Date during such Optional Extension Period as follows: (i) by first class mail, postage prepaid, addressed to the Holders; or (ii) as to any Global Note registered in the name of DTC or its nominee, by e-mail, fax, or any other manner as agreed to by the Company and the Holder of the Global Note. Copies of any such notice to a Holder, if given by the Company, shall be mailed to the Trustee at the same time. Section 2.07 MANDATORY DEFERRAL OF INTEREST. 13 (a) TRIGGER PERIOD. Subject to Section 2.08 and Section 3.02, if and to the extent that a Trigger Event has occurred as of any Trigger Determination Date, the Company shall defer payments of interest on the Notes beginning on the Interest Payment Date immediately following such Trigger Determination Date, thereby extending the Interest Payment Period on the Notes until (but not including) the first subsequent Interest Payment Date for which no Trigger Event has occurred as of the Trigger Determination Date applicable to such Interest Payment Date, but in any event for a period not extending beyond the date which is ten years following commencement of the applicable Extension Period, or beyond the Stated Maturity of the Notes (a "TRIGGER PERIOD"), during which Trigger Period deferred interest on the Notes shall not be due and payable, except to the extent that any such payment is made using the Alternative Coupon Satisfaction Mechanism, provided for in Section 3.02. (b) TRIGGER EVENT. "TRIGGER EVENT" means a determination by the Company that any of the following conditions exists as of the day that is the thirtieth day prior to any Interest Payment Date (or, in the event that such date is not a Business Day, the immediately preceding Business Day) (a "TRIGGER DETERMINATION DATE"): (i) the Risk-Based Capital Ratio for all Covered Life Insurance Subsidiaries, calculated on a combined basis, is less than 175% based on the most recent annual financial statements that such Covered Life Insurance Subsidiaries have filed with applicable state insurance commissioners; or (ii) (x) the Trailing Four Quarters Consolidated Net Income Amount for the period ending at the end of the fiscal quarter that ends two fiscal quarters prior to the most recently completed fiscal quarter prior to such Trigger Determination Date is zero or a negative amount, and (y) the Adjusted Stockholders' Equity Amount as of the end of the most recently completed quarter and as of the end of the fiscal quarter that ends two quarters prior to such most recently completed fiscal quarter has declined by 10% or more as compared to the Adjusted Stockholders' Equity Amount at the end of the fiscal quarter (the "BENCHMARK QUARTER") that is the later of (1) the quarter ended March 31, 2005 or (2) the quarter that is ten quarters prior to the most recently completed fiscal quarter. In the case of a Trigger Event arising under clause (ii) above, the Trigger Period shall continue until the Company satisfies both of the tests in clauses (i) and (ii) above as of the Trigger Determination Date applicable to any subsequent Interest Payment Date, and the Company's Adjusted Stockholders' Equity Amount has increased, or has declined by less than 10%, in either case as compared to the Adjusted Stockholders' Equity Amount at the end of the Benchmark Quarter with respect to the Trigger Period for which interest payment restrictions were imposed under clause (ii) above. (c) CHANGES IN GAAP. If, because of a change in GAAP that results in a cumulative effect of a change in an accounting principle or a restatement, (i) the Company's consolidated net income is higher or lower than it would have been absent such change, then, for purposes of the calculations described in paragraph (b)(ii) of this Section 2.07, commencing with the fiscal quarter for which such change in GAAP becomes effective, such consolidated net income shall be calculated on a pro forma basis as if such change had not occurred or (ii) the Adjusted 14 Stockholders' Equity Amount as of a fiscal quarter end is higher or lower than it would have been absent such change, then, for purposes of the calculations described in paragraph (b)(ii) of this Section 2.07, commencing with the fiscal quarter for which such change in GAAP becomes effective, the Adjusted Common Stockholders' Equity Amount shall be calculated on a pro forma basis as if such change had not occurred. (d) CHANGES IN THE MODEL ACT. If a change in the Model Act results in (1) a change in the mathematical relationship between the Company Action Level and the Authorized Control Level, or (2) any similar recalibration or re-scaling of the levels of Total Adjusted Capital that a life insurance company must possess in order to avoid triggering particular company action or regulatory action (whether mandatory or authorized) under the Model Act, then for purposes of making the calculations described in clause (i) of the definition of "Trigger Event," commencing with the first year for which such change becomes effective, the conditions for the occurrence of a Trigger Event will be changed to correspondingly adjust the 175% Risk-Based Capital Ratio set forth in such clause (i), as determined and verified by a nationally recognized independent actuarial consulting firm that is designated by a nationally recognized accounting firm that is not the independent registered public accounting firm that is the Company's auditors at the time of such designation. (e) COVENANTS. During a Trigger Period, the Company shall be subject to the limitations set forth in Section 3.01 and Section 3.02 of this First Supplemental Indenture. (f) FOREGONE INTEREST. By acquiring a Note or an interest therein, each Holder or beneficial owner of a Note, as the case may be, agrees that in the event of a Bankruptcy Default prior to the Stated Maturity or redemption of the Notes, any unpaid Mandatorily Deferred Interest in excess of 25% of the then outstanding principal amount of such Holder's Note (or the portion of such Note in which such beneficial owner holds an interest) (the "FOREGONE INTEREST") shall not be due and payable and no Holder or beneficial owner will have any claim for, and thus any right to receive, such Foregone Interest. (g) PAYMENT OF MANDATORILY DEFERRED INTEREST. Mandatorily Deferred Interest on the Notes may only be satisfied using the Alternative Coupon Satisfaction Mechanism except upon an Event of Default, in which case such Mandatorily Deferred Interest may be satisfied without regard to the Alternative Coupon Satisfaction Mechanism. In the event that a Trigger Period is no longer continuing, subsequent interest may be paid in cash without regard to the Alternative Coupon Satisfaction Mechanism. (h) NOTICES. By not later than the 15th day prior to each Interest Payment Date for which the Interest Payment Period is being extended by reason of a Trigger Event, the Company shall give notice of such Trigger Period as follows: (i) by first class mail, postage prepaid, addressed to the Holders; or (ii) as to any Global Note registered in the name of DTC or its nominee, by e-mail, fax, or any other manner as agreed to by the Company and the Holder of the Global Note. 15 Copies of any such notice to a Holder, if given by the Company, shall be mailed to the Trustee at the same time. Such notice, in addition to stating that interest payments will be deferred, shall set forth (x) the Risk-Based Capital Ratio for any relevant Covered Life Insurance Subsidiary, if the Trigger Event has been triggered by the test set forth in Section 2.07(b)(i) hereof, or (y) the Trailing Four Quarters Consolidated Net Income Amount and the Adjusted Stockholders' Equity Amount for the relevant periods and dates, if the Trigger Event has been triggered by the test set forth in Section 2.07(b)(ii) hereof, and, in either case, (z) the amount by which the Risk-Based Capital Ratio or the Adjusted Stockholders' Equity Amount, as the case may be, must increase in order for the Trigger Period to cease and for interest payments to be resumed. Copies of any such notice to a Holder, if given by the Company, shall be mailed to the Trustee at the same time. Section 2.08 DEFERRAL OF INTEREST IN GENERAL. (a) Any unpaid interest accrued during any Extension Period, including Compounded Interest, will in all events be due and payable upon the Stated Maturity, subject, in the case of Foregone Interest, to Section 2.07(f). (b) At the termination of any Extension Period, the Company shall pay all deferred interest then accrued and unpaid, together with Compounded Interest, on the Interest Payment Date on which such Extension Period terminates, subject to Section 2.07. An Extension Period will be deemed to terminate upon any redemption or upon any acceleration of the Stated Maturity. (c) In no event shall any Extension Period, whether or not consisting of consecutive Interest Payment Periods, (i) exceed ten years, (ii) end on a date other than an Interest Payment Date or (iii) extend beyond the Stated Maturity. For purposes of calculating the foregoing limitation on Extension Periods, (x) only when all accrued and unpaid interest, together with any Compounded Interest thereon, has been paid will any Interest Payment Period during which interest has been deferred no longer be included; and (y) after the commencement of an Extension Period, the period from the first Interest Payment Date for which interest was deferred pursuant to Section 2.06 or Section 2.07 and ending on the Interest Payment Date on which all interest that was deferred pursuant to Section 2.06 or Section 2.07, including Compounded Interest, is paid in full, shall be included for purposes of calculating the length of an Extension Period. Section 2.09 RIGHT TO OPTIONAL REDEMPTION BY THE COMPANY. (a)The Company may, at its option, redeem the Notes: (i) in whole or in part, on or after June 1, 2016 at the Par Redemption Amount; provided that if the Notes are not redeemed in whole, at least $50 million aggregate principal amount of the Notes (excluding Notes held by the Company or any of its Affiliates) remains outstanding after giving effect to such redemption; or (ii) in whole but not in part at any time at the Make-Whole Redemption Amount. 16 (b) The Company may not redeem fewer than all outstanding Notes unless all accrued and unpaid interest on the Notes, together with any Compounded Interest thereon, has been paid in full for all Interest Payment Periods terminating on or prior to the Redemption Date. (c) The date fixed for redemption of any Notes as a result of a Tax Event will be within 180 days following the occurrence of the Tax Event; provided, however, that if at the time the Company is able to eliminate, within the 180 day period, the Tax Event by taking some ministerial action that has no adverse effect on the Company or the Holders, the Company shall pursue such action in lieu of redemption; provided, further, that the Company will have no right or obligation to redeem the Notes while it is pursuing such ministerial action. (d) The definition of "Redemption Price" in Section 1.01 of the Base Indenture shall mean, in the case of a redemption of the Notes in whole or in part on or after June 1, 2016, the Par Redemption Amount, and in the case of a redemption in whole prior to June 1, 2016, the Make-Whole Redemption Amount; and Section 2.10 EVENTS OF DEFAULT. (a)Section 7.01 of the Base Indenture is hereby amended and supplemented with respect to the Notes by deleting clauses (a), (c) and (d) thereof and adding the following additional Event of Default: (i) the Company defaults in the payment of interest on the Notes when such interest becomes due and payable and such default continues for a period of 30 calendar days, whether or not such payment is prohibited by the subordination provisions of the Indenture; provided that the deferral of interest pursuant to a valid Extension Period satisfying Section 2.06, Section 2.07 and Section 2.08, as applicable, of the First Supplemental Indenture shall not constitute a default in the payment of interest. (b) The first paragraph of Section 7.02 of the Base Indenture is hereby modified with respect to the Notes by replacing the same with the following: "If an Event of Default with respect to the Notes at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare the principal amount of all the Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration, such principal amount, plus accrued and unpaid interest (other than Foregone Interest, in the event of a Bankruptcy Default), and premium, if payable, shall become immediately due and payable; provided, however, the payment of such principal, premium, if any, and interest, if any, on the Notes shall remain subordinated to the extent provided in the Indenture. Upon payment of such amount in the Currency in which the Notes are denominated (except as otherwise provided pursuant to Sections 3.01), all obligations of the Company in respect of the payment of principal of the Notes shall terminate." (c) The use of sources of funding other than the Alternative Coupon Satisfaction Mechanism to fund interest payments during a Trigger Period is not an Event of Default. Section 2.11 COVENANT DEFAULTS. (a)The Base Indenture is hereby amended and supplemented with respect to the Notes as follows: 17 (i) The last paragraph of Section 7.03 is amended in its entirety as follows: "If an Event of Default or a TIA Covenant Default with respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Notes by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy." (ii) Section 7.03 is further supplemented by adding the following paragraph following the last paragraph, as amended, in clause (i) above: "If a Covenant Default with respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. If a Covenant Default other than a TIA Covenant Default with respect to the Notes occurs and is continuing, and then only if the Trustee is directed by Holders pursuant to and in accordance with Section 7.12 of the Base Indenture, the Trustee shall proceed to protect and enforce the rights of the Holders of the Notes by such appropriate judicial proceedings as such Holders shall so direct to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy." (iii) Section 7.07, clause (1) is amended in its entirety as follows: "an Event of Default or Covenant Default shall have occurred and be continuing and such Holder has previously given written notice to the Trustee of a continuing Event of Default or Covenant Default, as the case may be, with respect to such series." (iv) Section 7.07, clause (2) is amended in its entirety as follows: "the Holders of not less than 25% in principal amount, in the case of an Event of Default, or a majority in principal amount, in the case of a Covenant Default, of the Outstanding Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default or such Covenant Default, as the case may be, in its own name as Trustee hereunder." (v) Section 7.11 is amended in its entirety as follows: "No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default or Covenant Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or Covenant Default or any acquiescence therein. Every right and remedy given by this Indenture or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be." (vi) Section 8.1(b) is amended in its entirety as follows: "In case an Event of Default or a TIA Covenant Default with respect to the Notes has occurred and is continuing, the Trustee shall, with respect to the Notes, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their 18 exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs." (b) Notwithstanding the foregoing, a Covenant Default shall not constitute an Event of Default and shall not give rise to any of the rights or duties set forth in Section 7.02 of the Base Indenture, as amended and supplemented with respect to the Notes by this First Supplemental Indenture. Section 2.12 DESIGNATION OF DEPOSITARY. Initially, the Depositary for the Notes will be The Depository Trust Company. The Global Notes will be registered in the name of the Depositary or its nominee, Cede & Co., and delivered by the Trustee to the Depositary or a custodian appointed by the Depositary for crediting to the accounts of its participants. Section 2.13 CONVERSION. The Notes will not be convertible into shares of Common Stock or any other security. Section 2.14 DEFINITIVE FORM OF NOTES. The Notes will be issued in definitive form only under the limited circumstances set forth in Section 3.05 of the Base Indenture. Section 2.15 COMPANY REPORTS. The provisions of Section 9.04 of the Base Indenture relating to the nature, content and date for reports by the Company to the Holders, to the extent such provisions are mandated by the Trust Indenture Act of 1939, as amended, shall apply to the Notes. Section 2.16 MODIFICATION OF INDENTURE. In addition to the provisions contained in Article Eleven of the Base Indenture, The Company may, without the consent of any Holder, ammend this First supplemental Indenture to (i) increase the Share Cap Amount in accordance with the provisions of Section 3.02(b), and (ii) to amend Section 2.07(b)(i), in accordance with the provisions of Section 2.07(d). Section 2.17 OTHER. (a) The provisions contained in Article Five of the Base Indenture and, without limiting the provisions of Section 4.01 of this First Supplemental Indenture, any provisions in the Base Indenture relating to the Issuer Trusts shall not apply to the Notes. (b) The Company agrees, and by acquiring an interest in a Note each beneficial owner of a Note agrees, to treat the Notes as indebtedness for U.S. federal income tax purposes. ARTICLE III COVENANTS Article Twelve of the Base Indenture is hereby supplemented with respect to the Notes by the following additional covenants of the Company: Section 3.01 LIMITATION ON COMPANY PAYMENTS. During any Extension Period and until such time as all accrued but unpaid interest, together with any Compounded Interest thereon, is paid in full, the Company shall not (and shall not permit any of its Subsidiaries to): 19 (a) declare or pay any dividends on, make distributions regarding, or redeem, purchase, acquire, or make a liquidation payment with respect to, any shares of the capital stock of the Company, other than: (i) purchases of capital stock of the Company in connection with any employee or agent benefit plans or the satisfaction of the Company's obligations under any contract or security outstanding on such date requiring the Company to purchase its capital stock, or under any dividend reinvestment plan; (ii) in connection with the reclassification of any class or series of capital stock of the Company or the exchange or the conversion of one class or series of the capital stock of the Company for or into another class or series of the capital stock of the Company; (iii) the purchase of fractional interests in shares of the capital stock of the Company in connection with the conversion or exchange provisions of such capital stock or the security being converted or exchanged; (iv) dividends or distributions in the Company's capital stock, or rights to acquire Common Stock, or repurchases or redemptions of Common Stock solely from the issuance or exchange of Common Stock; (v) any declaration of a dividend in connection with the implementation of a shareholder rights plan, or the issuances of capital stock under any such plan in the future, or redemptions or repurchases of any rights outstanding pursuant to a Company shareholder rights plan; or (vi) acquisitions of Common Stock in connection with any acquisitions of businesses made by the Company (which acquisitions by the Company are made in connection with the satisfaction of indemnification obligations of the sellers of such businesses); (b) make any payment of principal of, or interest or premium, if any, on, or repay, repurchase or redeem any debt securities issued by the Company that rank pari passu with or junior in interest to the Notes other than any payment, repurchase or redemption in respect of Parity Debt Securities made ratably and in proportion to the respective amount of (1) accrued and unpaid amounts on such Parity Debt Securities, on the one hand, and (2) accrued and unpaid amounts on the Notes, on the other hand; and (c) make any guarantee payments with respect to any guarantee by the Company of the Debt Securities of any Subsidiary of the Company, if such guarantee ranks pari passu with or junior in interest to the Notes, other than any payment in respect of Parity Guarantees made ratably and in proportion to the respective amount of (1) accrued and unpaid amounts on such Parity Guarantees, on the one hand, and (2) accrued and unpaid amounts on the Notes, on the other hand. Section 3.02 ALTERNATIVE COUPON SATISFACTION MECHANISM. (a) Commencing at the date (i) on which a Trigger Event occurs or (ii) that is five-years following the first Interest 20 Payment Date as of which the Company elected to commence an Optional Extension Period, the Company shall use Commercially Reasonable Efforts to satisfy its obligation to pay interest then outstanding on the Notes by selling Common Stock (including treasury shares and shares of Common Stock sold pursuant to any dividend reinvestment plan or employee benefits plan) (the "ALTERNATIVE COUPON SATISFACTION MECHANISM"), the proceeds of which shall be paid to the Holders, in satisfaction of the accrued but unpaid interest, together with any Compounded Interest thereon, then due on the Notes. Mandatorily Deferred Interest on the Notes may only be satisfied using the Alternative Coupon Satisfaction Mechanism except if an Event of Default has occurred and is continuing, in which case such interest obligation may be satisfied without regard to the Alternative Coupon Satisfaction Mechanism. In the event that a Trigger Period is no longer continuing, subsequent interest may be paid in cash without regard to the Alternative Coupon Satisfaction Mechanism. (b) The Company is not permitted to sell shares of Common Stock in excess of a number of shares of Common Stock which at May 26, 2006 is equal to 55,000,000 (the "SHARE CAP AMOUNT"), for the purpose of satisfying the Alternative Coupon Satisfaction Mechanism or otherwise paying deferred interest on the Notes. The Company may, at its discretion, increase the Share Cap Amount (including through the increase of its authorized share capital, if necessary) if the Company determines that such increase is necessary to allow it to issue sufficient shares to satisfy its obligations to pay deferred interest on the Notes pursuant to the Alternative Coupon Satisfaction Mechanism or otherwise pay deferred interest on the Notes. If the issued and outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock split, reverse stock split, stock dividend, reclassification, recapitalization, split-up, combination, exchange of shares or other similar transaction, then the Share Cap Amount shall be correspondingly adjusted. (c) The net proceeds received by the Company from the issuance of shares of Common Stock (i) starting at such date that is 180 days prior to any Interest Payment Date on which the Company intends to use the Alternative Coupon Satisfaction Mechanism and (ii) designated by the Company at or before the time of such issuance as available to pay interest on the Notes will, at the time such proceeds are delivered to the Trustee to satisfy the relevant interest payment, be deemed to satisfy the Company's obligations to pay interest on the Notes pursuant to the Alternative Coupon Satisfaction Mechanism pursuant to the preceding clause (a). (d) In the event that the Company extends the Interest Payment Period on the Notes and on other Parity Debt Securities that contain similar requirements to pay Mandatorily Deferred Interest pursuant to the Alternative Coupon Satisfaction Mechanism, the Company will apply any net proceeds so raised on a pro rata basis towards its obligations to pay interest on the Notes and on such Parity Debt Securities. ARTICLE IV SUBORDINATION Section 4.01 SENIOR INDEBTEDNESS. "Senior Indebtedness" for all purposes of this Indenture shall have the meaning ascribed to such term in the Base Indenture and shall also include the principal, premium, if any, and interest on (including interest accruing on or after the 21 filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not such claim for post-petition interest is allowed in such proceeding): (a) all senior, senior subordinated, subordinated and other indebtedness of the Company, whether outstanding on the date of the issuance of the Notes or thereafter created, incurred or assumed, which is for money borrowed (including, without limitation, the Company's 5.35% Senior Notes due 2010, 5.65% Senior Notes due 2015 and any amounts borrowed under the Company's $750 million senior unsecured revolving credit facility or any amounts owed by the Company under any debentures or similar instruments issued in connection with any "trust preferred securities"), or which is otherwise evidenced by a note or similar instrument; (b) all obligations of the Company under leases required or permitted to be capitalized under GAAP; (c) any indebtedness of any other Person of the kinds described in the preceding clause (a), for the payment of which the Company or its property is responsible or liable as guarantor or otherwise; and (d) amendments, modifications, renewals, extensions, deferrals and refundings of any of the forgoing types of indebtedness. Senior Indebtedness shall continue to be Senior Indebtedness and to be entitled to the benefits of the subordination provisions of the Indenture irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness, or any extension or renewal of the Senior Indebtedness. Notwithstanding anything to the contrary in the foregoing or in the Base Indenture, Senior Indebtedness shall not include (i) any accounts payable or other liability to trade creditors, (ii) any indebtedness which by its terms is expressly made pari passu with or subordinated to the Notes, (iii) obligations owed by the Company to any of its subsidiaries or (iv) any liability for federal, state, local or other taxes owed or owing by the Company or its subsidiaries. ARTICLE V MISCELLANEOUS Section 5.01 MEETINGS AND VOTING. (a)Section 9.3 of the Base Indenture is hereby amended and supplemented with respect to the Notes such that the request of the Holders of at least 25% of the Outstanding Debt Securities of a series or of all series, as the case may be, shall be required to call a meeting of Holders. (b) With respect to the Notes, any request, demand, authorization, direction, notice, consent, waiver or other action provided by the Base Indenture to be given or taken by Holders may be embodied in one or more instruments of substantially similar tenor signed by such Holders in person or by an agent or proxy duly appointed in writing; and, except as otherwise expressly provided in the Base Indenture, such action will become effective when such instrument or instruments are delivered to the Trustee and, where expressly required, to the Company. Whenever Holders of a specified percentage in aggregate principal amount may take any act, such act may be evidenced by: (i) instruments executed by Holders; (ii) the record of 22 Holders voting in favor thereof at any meeting of the Holders; or (iii) a combination of such instruments and any such record of such a meeting of Holders. Section 5.02 RATIFICATION OF INDENTURE. The Base Indenture, as supplemented and amended by this First Supplemental Indenture, is ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Base Indenture with respect to the Notes in the manner and to the extent herein and therein provided. If any provision of this First Supplemental Indenture is inconsistent with a provision of the Base Indenture, the terms of this First Supplemental Indenture shall control. Section 5.03 TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals contained herein are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture. Section 5.04 GOVERNING LAW. This First Supplemental Indenture and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York. Section 5.05 SEVERABILITY. In case any one or more of the provisions contained in this First Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this First Supplemental Indenture or of the Notes, but this First Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein. Section 5.06 COUNTERPARTS. This First Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Section 5.07 SUCCESSORS AND ASSIGNS. All covenants and agreements in the Indenture by the Company shall bind its successors and assigns, whether expressed or not. The Company will have the right at all times to assign any of its respective rights or obligations under the Indenture to a direct or indirect wholly owned Subsidiary of the Company; provided that, in the event of any such assignment, the Company will remain liable for all of its respective obligations. Subject to the foregoing, the Indenture will be binding upon and inure to the benefit of the parties thereto and their respective successors and assigns. The Indenture may not otherwise be assigned by the parties thereto. 22 1 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, on the date or dates indicated in the acknowledgments and as of the day and year first above written. AMERIPRISE FINANCIAL, INC. as the Company By: /s/ Arthur H. Berman ------------------------------- Name: Arthur H. Berman Title: Senior Vice President and Treasurer U.S. BANK NATIONAL ASSOCIATION as Trustee By: /s/ Raymond Haverstock -------------------------------- Name: Raymond Haverstock Title: Vice President EXHIBIT A [FACE OF NOTE] THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM. UNLESS (A) THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO AMERIPRISE FINANCIAL, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, (B) ANY NOTE ISSUED IS REGISTERED IN THE NAME REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND (C) ANY PAYMENT HEREON IS MADE TO U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), AND EXCEPT AS OTHERWISE PROVIDED IN THE INDENTURE, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. A-1 AMERIPRISE FINANCIAL, INC. 7.518% JUNIOR SUBORDINATED NOTE DUE 2066 CERTIFICATE NO.: ____________ $____________ CUSIP NO: ____________ This Note is one of a duly authorized series of Debt Securities of AMERIPRISE FINANCIAL, INC. (the "NOTES"), all issued under and pursuant to a Junior Subordinated Indenture dated as of May 5, 2006, duly executed and delivered by AMERIPRISE FINANCIAL, INC., a Delaware corporation (the "COMPANY," which term includes any successor corporation under the Indenture hereinafter referred to), and U.S. Bank National Association, a national banking association, as Trustee (the "TRUSTEE"), as supplemented by the First Supplemental Indenture thereto dated as of May 26, 2006, between the Company and the Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. By the terms of the Indenture, the Notes are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Indenture. The Company, for value received, hereby promises to pay to Cede & Co., as nominee of The Depository Trust Company or its registered assigns, the principal sum of ________________________ U.S. Dollars ($____________) on June 1, 2066, as increased or decreased as provided for in Schedule 1 hereto. Subject to Section 2.06, Section 2.07 and Section 2.08 of the First Supplemental Indenture, Interest Payment Dates during the Fixed Rate Period: June 1 and December 1, commencing on December 1, 2006. Subject to Section 2.06, Section 2.07 and Section 2.08 of the First Supplemental Indenture, Interest Payment Dates during the Floating Rate Period: March 1, June 1, September 1 and December 1, commencing on June 1, 2016. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. A-2 IN WITNESS WHEREOF, the Company has caused this Note to be duly executed manually or by facsimile by its duly authorized officers under its corporate seal. AMERIPRISE FINANCIAL, INC. as the Company By: ---------------------------- Name: Arthur H. Berman Title: Senior Vice President and Treasurer A-3 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the 7.518% Junior Subordinated Notes due 2066 issued under the within mentioned Indenture. U.S. BANK NATIONAL ASSOCIATION, as Trustee By: ---------------------------- Name: Title: Dated: __________, 2006 A-4 [REVERSE OF NOTE] AMERIPRISE FINANCIAL, INC. 7.518% JUNIOR SUBORDINATED NOTE DUE 2066 To the extent that any rights or other provisions of this Note differ from or are inconsistent with those contained in the Indenture, then the Indenture shall control. Capitalized terms used herein but not defined shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Principal and Interest AMERIPRISE FINANCIAL, INC., a Delaware corporation (including any successor corporation under the Indenture hereinafter referred to, the "COMPANY"), promises to pay interest on the principal amount of this Note at the Fixed Rate from May 26, 2006 to June 1, 2016, and at the Floating Rate from June 1, 2016 to the Stated Maturity. Subject to Section 2.06, Section 2.07 and Section 2.08 of the First Supplemental Indenture, (a) during the Fixed Rate Period, this Note will accrue interest at a rate per annum of 7.518% of the principal amount of $1,000 per Note, payable semi-annually in arrears on June 1 and December 1 of each year (each a "FIXED RATE INTEREST PAYMENT DATE"), commencing on December 1, 2006 and (b) during the Floating Rate Period, this Note will accrue interest at a rate per annum of 3-month LIBOR plus a margin equal to 290.5 basis points, payable quarterly in arrears on March 1, June 1, September 1 and December 1 of each year (each a "FLOATING RATE INTEREST PAYMENT DATE" and together with the Fixed Rate Interest Payment Date, an "INTEREST PAYMENT DATE"), commencing on June 1, 2016. Interest not paid on any Interest Payment Date, including any interest deferred during any Extension Period, will accrue and compound at the from time to time then applicable interest rate (whether semi-annually at the Fixed Rate or quarterly at the Floating Rate, as the case may be), as provided in the Indenture. Subject to Section 2.05(a)(iii), such interest will accrue and compound to the date that it is actually paid. The amount of interest on this Note payable for any Interest Payment Date during the Fixed Rate Period shall be computed (i) for any full Interest Payment Period on the basis of a 360-day year of twelve 30-day months, (ii) for any period shorter than a full Interest Payment Period, on the basis of a 30-day month and (iii) for any period shorter than a 30-day month, on the basis of the actual number of days elapsed in the 30-day month. Floating Rate interest on this Note shall be computed on the basis of a 360-day year and the actual number of days elapsed in the 360-day year. 2. Optional Deferral of Interest Subject to Section 2.06 and Section 2.08 of the First Supplemental Indenture, as long as no Event of Default has occurred and is continuing, and no Trigger Event has occurred and no Trigger Period caused thereby is continuing, the Company shall have the right at any time and A-5 from time to time, to defer payments of interest on the Notes by extending the Interest Payment Period on the Notes for a period (an "OPTIONAL EXTENSION PERIOD") not exceeding ten years, during which Optional Extension Period deferred interest on the Notes shall not be due and payable but will continue to accrue and compound semi-annually or quarterly, as applicable, to the extent permitted by applicable law, at the then applicable rate of interest on the notes; provided that no such Optional Extension Period may end on a date other than an Interest Payment Date or extend beyond the stated maturity of the Notes. At the end of any Optional Extension Period, the Company may settle any and all Optionally Deferred Interest with cash from any source until the date that is five years following the first Interest Payment Date as of which the Company commenced an Optional Extension Period on the Notes. Thereafter, subject to the occurrence of a Market Disruption Event, the Company must immediately and continuously use its Commercially Reasonable Efforts to sell shares of Common Stock and to use the proceeds therefrom to pay any outstanding Optionally Deferred Interest in accordance with the Alternative Coupon Satisfaction Mechanism. If a Trigger Event occurs after commencement of an Optional Extension Period, the Optional Extension Period will be deemed suspended for so long as the Trigger Period is continuing. Once the Trigger Period is no longer continuing, the right of the Company to optionally defer payment of interest will continue, subject to the limitations and consequences described herein. The first Interest Payment Date on which the Company defers the payment of any interest (whether due to an optional deferral or the occurrence of a Trigger Event) will commence an Optional Extension Period. This Optional Extension Period will not be considered terminated until the first date thereafter when all accrued and unpaid interest, together with any Compounded Interest, has been paid by the Company. An Optional Extension Period may not, under any circumstances, extend beyond the tenth anniversary of its commencement or beyond the stated maturity date of the Notes. When and if an Optional Extension Period is terminated because the Company has paid in full all accrued and unpaid interest then owed by the Company, together with any Compounded Interest thereupon, the Company may commence a new Optional Extension Period, subject to the requirements of Section 2.06, there being no limit to the number of such new Optional Extension Period that the Company may commence. During an Optional Extension Period, the Company shall not (and shall not permit any of its Subsidiaries to) make the payments or take any of the actions set forth in Section 3.01 of the First Supplemental Indenture. 3. Mandatory Deferral of Interest Subject to Section 2.07 and Section 2.08 of the First Supplemental Indenture, if and to the extent that a Trigger Event has occurred as of any Trigger Determination Date, the Company shall defer payments of interest on the Notes beginning on the Interest Payment Date immediately following such Trigger Determination Date, thereby extending the Interest Payment Period on the Notes until (but not including) the first subsequent Interest Payment Date for which no Trigger Event has occurred as of the Trigger Determination Date applicable to such Interest Payment Date, but in any event for a period not exceeding ten years (a "TRIGGER A-6 PERIOD"), during which Trigger Period deferred interest on the Notes shall not be due and payable, except to the extent that any such payment is made using the Alternative Coupon Satisfaction Mechanism. By acquiring this Note or an interest herein, the Holder or beneficial owner of this Note, as the case may be, agrees that in the event of a Bankruptcy Default prior to the Stated Maturity or redemption of this Note, any unpaid Mandatorily Deferred Interest in excess of 25% of the then outstanding principal amount of this Note (or the portion of this Note in which such beneficial owner holds an interest) (the "FOREGONE INTEREST") shall not be due and payable and no Holder or beneficial owner will have any claim for, and thus any right to receive, such Foregone Interest. Mandatorily Deferred Interest on the Notes may only be satisfied using the Alternative Coupon Satisfaction Mechanism except upon an Event of Default, in which case such Mandatorily Deferred Interest may be satisfied without regard to the Alternative Coupon Satisfaction Mechanism. In the event that a Trigger Event is no longer continuing, subsequent interest may be paid in cash without regard to the Alternative Coupon Satisfaction Mechanism. During a Trigger Period, the Company shall not (and shall not permit any of its Subsidiaries to) make the payments or take any of the actions set forth in Section 3.01 of the First Supplemental Indenture. 4. Extension Periods in General The Holder of this Note, and each beneficial owner of an interest in this Note, by accepting the same, agrees to and shall be bound by the deferral provisions in the Indenture, including Section 2.06, Section 2.07, and Section 2.08 of the First Supplemental Indenture. At the termination of any Extension Period, the Company shall pay all deferred interest then accrued and unpaid, together with Compounded Interest, on the Interest Payment Date on which such Extension Period terminates, subject to Section 2.07. An Extension Period will be deemed to terminate upon any redemption or upon any acceleration of the Stated Maturity. In no event shall any Extension Period, whether or not consisting of consecutive Interest Payment Periods, (i) exceed ten years, (ii) end on a date other than an Interest Payment Date or (iii) extend beyond the Stated Maturity. For purposes of calculating the foregoing limitation on Extension Periods, (x) only when all accrued and unpaid interest, together with any Compounded Interest thereon, has been paid will any Interest Payment Period during which interest has been deferred no longer be included; and (y) after the commencement of an Optional Extension Period, the period from the first Interest Payment Date for which interest was deferred pursuant to Section 2.06 of the First Supplemental Indenture and ending on the Interest Payment Date on which all interest that was deferred pursuant to such Section 2.06, including Compounded Interest, is paid in full, shall be included for purposes of calculating the length of an Optional Extension Period. 5. Method of Payment A-7 Interest on this Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name this Note is registered in the Security Register at the close of business on the Regular Record Date for the payment of such interest. As long as the Notes remain in book entry form or are represented by a Global Note, the Regular Record Dates for this Note shall be the Business Day next preceding the corresponding Interest Payment Date. If the Notes are issued in definitive form, the Regular Record Dates for this Note shall be such Business Day selected by the Company that is at least one Business Day prior to the corresponding Interest Payment Date. 6. Paying Agent and Security Registrar Initially, U.S. Bank National Association, the Trustee, will act as Paying Agent and Security Registrar. The Company may change the Paying Agent and Security Registrar without notice to any Holder. 7. Indenture This Note is one of a duly authorized series of the 7.518% Junior Subordinated Notes due 2066 (the "NOTES") of the Company issued under a Junior Subordinated Indenture, dated as of May 5, 2006 (the "BASE INDENTURE"), as supplemented by the First Supplemental Junior Subordinated Indenture dated May 26, 2006 (the "FIRST SUPPLEMENTAL INDENTURE" and, together with the Base Indenture, the "INDENTURE"), in each case, between the Company and U.S. Bank National Association, as trustee (the "TRUSTEE"). The terms of this Note include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended ("TIA"). This Note is subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture unless otherwise indicated. 8. Optional Right of Redemption The Company may, at its option, redeem the Notes (a) in whole or in part, on or after June 1, 2016 at the Par Redemption Amount; provided that if the Notes are not redeemed in whole, at least $50 million aggregate principal amount of the Notes (excluding Notes held by the Company or any of its Affiliates) remains outstanding after giving effect to such redemption; or (b) in whole but not in part at any time at the Make-Whole Redemption Amount. 9. No Sinking Fund. The Notes will not be subject to a sinking fund provision. 10. Subordination The payment of principal of and interest on this Note is, to the extent and in the manner provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all amounts then due on all Senior Indebtedness of the Company, and this Note is issued A-8 subject to such subordination provisions contained in the Indenture. Each Holder of this Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee such Holder's attorney-in-fact for any and all such purposes. 11. Defaults and Remedies The Indenture provides for Events of Default and remedies relating thereto with respect to the Notes as set forth in Article Seven of the Base Indenture as supplemented by Section 2.10 of the First Supplemental Indenture. 12. Amendment; Supplement The Indenture provides for amendments, supplements and waivers with respect to the Indenture as set forth in Article Eleven of the Base Indenture, as supplemented by Section 2.16 of the First Supplemental Indenture. 13. Restrictive Covenants The Indenture provides restrictive covenants with respect to the Notes as set forth in Article Twelve of the Base Indenture as supplemented by Article III of the First Supplemental Indenture. 14. Denomination; Transfer; Exchange The Notes are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes so issued are exchangeable for a like aggregate principal amount at maturity of Notes of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Trustee, duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the same aggregate principal amount at maturity will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto. 15. Persons Deemed Owners The registered Holder of this Note shall be treated as its owner for all purposes. 16. Tax Treatment A-9 The Company agrees, and by acquiring an interest in a Note each beneficial owner of a Note agrees, to treat the Notes as indebtedness for U.S. federal income tax purposes. 17. Defeasance Subject to certain conditions contained in the Indenture, the Company's obligations under the Indenture and some or all of the Notes may at any time be terminated if the Company deposits with the Trustee cash and/or U.S. Government Obligations sufficient in the opinion of a nationally recognized firm of independent public accountants to pay and discharge each installment of principal, premium, if any, and interest on the Notes to Stated Maturity. 18. No Recourse Against Others No recourse shall be had for the payment of the principal of or the interest on this Note, or for any claim based hereon or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released. 19. Authentication This Note shall not be valid until the Trustee (or authenticating agent) executes the certificate of authentication on the other side of this Note. 20. Governing Law The Indenture and this Note shall be governed by, and construed in accordance with, the laws of the State of New York. A-10 SCHEDULE 1 SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE The following increases or decreases in this Global Note have been made:
Principal Amount Amount of decrease Amount of increase in of Notes evidenced in Principal Amount Principal Amount of by this Global Note Signature of of Notes evidenced Notes evidenced by following such authorized Date by this Global Note this Global Note decrease or increase officer of agent - -------- ------------------- --------------------- -------------------- ----------------
Schedule 1 EX-4 4 globnote.txt (EXHIBIT 4.2) Exhibit 4.2 [FACE OF NOTE] THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE REGISTERED UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM. UNLESS (A) THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO AMERIPRISE FINANCIAL, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, (B) ANY NOTE ISSUED IS REGISTERED IN THE NAME REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND (C) ANY PAYMENT HEREON IS MADE TO U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), AND EXCEPT AS OTHERWISE PROVIDED IN THE INDENTURE, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. AMERIPRISE FINANCIAL, INC. 7.518% JUNIOR SUBORDINATED NOTE DUE 2066 CERTIFICATE NO.:1 $500,000,000 CUSIP NO: 03076C AC 0 This Note is one of a duly authorized series of Debt Securities of AMERIPRISE FINANCIAL, INC. (the "NOTES"), all issued under and pursuant to a Junior Subordinated Indenture dated as of May 5, 2006, duly executed and delivered by AMERIPRISE FINANCIAL, INC., a Delaware corporation (the "COMPANY," which term includes any successor corporation under the Indenture hereinafter referred to), and U.S. Bank National Association, a national banking association, as Trustee (the "TRUSTEE"), as supplemented by the First Supplemental Indenture thereto dated as of May 26, 2006, between the Company and the Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. By the terms of the Indenture, the Notes are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Indenture. The Company, for value received, hereby promises to pay to Cede & Co., as nominee of The Depository Trust Company or its registered assigns, the principal sum of five hundred million U.S. Dollars ($500,000,000) on June 1, 2066, as increased or decreased as provided for in Schedule 1 hereto. Subject to Section 2.06, Section 2.07 and Section 2.08 of the First Supplemental Indenture, Interest Payment Dates during the Fixed Rate Period: June 1 and December 1, commencing on December 1, 2006. Subject to Section 2.06, Section 2.07 and Section 2.08 of the First Supplemental Indenture, Interest Payment Dates during the Floating Rate Period: March 1, June 1, September 1 and December 1, commencing on June 1, 2016. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. IN WITNESS WHEREOF, the Company has caused this Note to be duly executed manually or by facsimile by its duly authorized officers under its corporate seal. AMERIPRISE FINANCIAL, INC. as the Company By: /s/ Arthur H. Berman ------------------------------------------- Name: Arthur H. Berman Title: Senior Vice President and Treasurer TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the 7.518% Junior Subordinated Notes due 2066 issued under the within mentioned Indenture. U.S. BANK NATIONAL ASSOCIATION, as Trustee By: /s/ Raymond S. Haverstock ------------------------------------------ Name: Raymond S. Haverstock Title: Vice President Dated: May 26, 2006 [REVERSE OF NOTE] AMERIPRISE FINANCIAL, INC. 7.518% JUNIOR SUBORDINATED NOTE DUE 2066 To the extent that any rights or other provisions of this Note differ from or are inconsistent with those contained in the Indenture, then the Indenture shall control. Capitalized terms used herein but not defined shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Principal and Interest AMERIPRISE FINANCIAL, INC., a Delaware corporation (including any successor corporation under the Indenture hereinafter referred to, the "COMPANY"), promises to pay interest on the principal amount of this Note at the Fixed Rate from May 26, 2006 to June 1, 2016, and at the Floating Rate from June 1, 2016 to the Stated Maturity. Subject to Section 2.06, Section 2.07 and Section 2.08 of the First Supplemental Indenture, (a) during the Fixed Rate Period, this Note will accrue interest at a rate per annum of 7.518% of the principal amount of $1,000 per Note, payable semi-annually in arrears on June 1 and December 1 of each year (each a "FIXED RATE INTEREST PAYMENT DATE"), commencing on December 1, 2006 and (b) during the Floating Rate Period, this Note will accrue interest at a rate per annum of 3-month LIBOR plus a margin equal to 290.5 basis points, payable quarterly in arrears on March 1, June 1, September 1 and December 1 of each year (each a "FLOATING RATE INTEREST PAYMENT DATE" and together with the Fixed Rate Interest Payment Date, an "INTEREST PAYMENT DATE"), commencing on June 1, 2016. Interest not paid on any Interest Payment Date, including any interest deferred during any Extension Period, will accrue and compound at the from time to time then applicable interest rate (whether semi-annually at the Fixed Rate or quarterly at the Floating Rate, as the case may be), as provided in the Indenture. Subject to Section 2.05(a)(iii), such interest will accrue and compound to the date that it is actually paid. The amount of interest on this Note payable for any Interest Payment Date during the Fixed Rate Period shall be computed (i) for any full Interest Payment Period on the basis of a 360-day year of twelve 30-day months, (ii) for any period shorter than a full Interest Payment Period, on the basis of a 30-day month and (iii) for any period shorter than a 30-day month, on the basis of the actual number of days elapsed in the 30-day month. Floating Rate interest on this Note shall be computed on the basis of a 360-day year and the actual number of days elapsed in the 360-day year. 2. Optional Deferral of Interest Subject to Section 2.06 and Section 2.08 of the First Supplemental Indenture, as long as no Event of Default has occurred and is continuing, and no Trigger Event has occurred and no Trigger Period caused thereby is continuing, the Company shall have the right at any time and from time to time, to defer payments of interest on the Notes by extending the Interest Payment Period on the Notes for a period (an "OPTIONAL EXTENSION PERIOD") not exceeding ten years, during which Optional Extension Period deferred interest on the Notes shall not be due and payable but will continue to accrue and compound semi-annually or quarterly, as applicable, to the extent permitted by applicable law, at the then applicable rate of interest on the notes; provided that no such Optional Extension Period may end on a date other than an Interest Payment Date or extend beyond the stated maturity of the Notes. At the end of any Optional Extension Period, the Company may settle any and all Optionally Deferred Interest with cash from any source until the date that is five years following the first Interest Payment Date as of which the Company commenced an Optional Extension Period on the Notes. Thereafter, subject to the occurrence of a Market Disruption Event, the Company must immediately and continuously use its Commercially Reasonable Efforts to sell shares of Common Stock and to use the proceeds therefrom to pay any outstanding Optionally Deferred Interest in accordance with the Alternative Coupon Satisfaction Mechanism. If a Trigger Event occurs after commencement of an Optional Extension Period, the Optional Extension Period will be deemed suspended for so long as the Trigger Period is continuing. Once the Trigger Period is no longer continuing, the right of the Company to optionally defer payment of interest will continue, subject to the limitations and consequences described herein. The first Interest Payment Date on which the Company defers the payment of any interest (whether due to an optional deferral or the occurrence of a Trigger Event) will commence an Optional Extension Period. This Optional Extension Period will not be considered terminated until the first date thereafter when all accrued and unpaid interest, together with any Compounded Interest, has been paid by the Company. An Optional Extension Period may not, under any circumstances, extend beyond the tenth anniversary of its commencement or beyond the stated maturity date of the Notes. When and if an Optional Extension Period is terminated because the Company has paid in full all accrued and unpaid interest then owed by the Company, together with any Compounded Interest thereupon, the Company may commence a new Optional Extension Period, subject to the requirements of Section 2.06, there being no limit to the number of such new Optional Extension Period that the Company may commence. During an Optional Extension Period, the Company shall not (and shall not permit any of its Subsidiaries to) make the payments or take any of the actions set forth in Section 3.01 of the First Supplemental Indenture. 3. Mandatory Deferral of Interest Subject to Section 2.07 and Section 2.08 of the First Supplemental Indenture, if and to the extent that a Trigger Event has occurred as of any Trigger Determination Date, the Company shall defer payments of interest on the Notes beginning on the Interest Payment Date immediately following such Trigger Determination Date, thereby extending the Interest Payment Period on the Notes until (but not including) the first subsequent Interest Payment Date for which no Trigger Event has occurred as of the Trigger Determination Date applicable to such Interest Payment Date, but in any event for a period not exceeding ten years (a "TRIGGER PERIOD"), during which Trigger Period deferred interest on the Notes shall not be due and payable, except to the extent that any such payment is made using the Alternative Coupon Satisfaction Mechanism. By acquiring this Note or an interest herein, the Holder or beneficial owner of this Note, as the case may be, agrees that in the event of a Bankruptcy Default prior to the Stated Maturity or redemption of this Note, any unpaid Mandatorily Deferred Interest in excess of 25% of the then outstanding principal amount of this Note (or the portion of this Note in which such beneficial owner holds an interest) (the "FOREGONE INTEREST") shall not be due and payable and no Holder or beneficial owner will have any claim for, and thus any right to receive, such Foregone Interest. Mandatorily Deferred Interest on the Notes may only be satisfied using the Alternative Coupon Satisfaction Mechanism except upon an Event of Default, in which case such Mandatorily Deferred Interest may be satisfied without regard to the Alternative Coupon Satisfaction Mechanism. In the event that a Trigger Event is no longer continuing, subsequent interest may be paid in cash without regard to the Alternative Coupon Satisfaction Mechanism. During a Trigger Period, the Company shall not (and shall not permit any of its Subsidiaries to) make the payments or take any of the actions set forth in Section 3.01 of the First Supplemental Indenture. 4. Extension Periods in General The Holder of this Note, and each beneficial owner of an interest in this Note, by accepting the same, agrees to and shall be bound by the deferral provisions in the Indenture, including Section 2.06, Section 2.07, and Section 2.08 of the First Supplemental Indenture. At the termination of any Extension Period, the Company shall pay all deferred interest then accrued and unpaid, together with Compounded Interest, on the Interest Payment Date on which such Extension Period terminates, subject to Section 2.07. An Extension Period will be deemed to terminate upon any redemption or upon any acceleration of the Stated Maturity. In no event shall any Extension Period, whether or not consisting of consecutive Interest Payment Periods, (i) exceed ten years, (ii) end on a date other than an Interest Payment Date or (iii) extend beyond the Stated Maturity. For purposes of calculating the foregoing limitation on Extension Periods, (x) only when all accrued and unpaid interest, together with any Compounded Interest thereon, has been paid will any Interest Payment Period during which interest has been deferred no longer be included; and (y) after the commencement of an Optional Extension Period, the period from the first Interest Payment Date for which interest was deferred pursuant to Section 2.06 of the First Supplemental Indenture and ending on the Interest Payment Date on which all interest that was deferred pursuant to such Section 2.06, including Compounded Interest, is paid in full, shall be included for purposes of calculating the length of an Optional Extension Period. 5. Method of Payment Interest on this Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name this Note is registered in the Security Register at the close of business on the Regular Record Date for the payment of such interest. As long as the Notes remain in book entry form or are represented by a Global Note, the Regular Record Dates for this Note shall be the Business Day next preceding the corresponding Interest Payment Date. If the Notes are issued in definitive form, the Regular Record Dates for this Note shall be such Business Day selected by the Company that is at least one Business Day prior to the corresponding Interest Payment Date. 6. Paying Agent and Security Registrar Initially, U.S. Bank National Association, the Trustee, will act as Paying Agent and Security Registrar. The Company may change the Paying Agent and Security Registrar without notice to any Holder. 7. Indenture This Note is one of a duly authorized series of the 7.518% Junior Subordinated Notes due 2066 (the "NOTES") of the Company issued under a Junior Subordinated Indenture, dated as of May 5, 2006 (the "BASE INDENTURE"), as supplemented by the First Supplemental Junior Subordinated Indenture dated May 26, 2006 (the "FIRST SUPPLEMENTAL INDENTURE" and, together with the Base Indenture, the "INDENTURE"), in each case, between the Company and U.S. Bank National Association, as trustee (the "TRUSTEE"). The terms of this Note include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended ("TIA"). This Note is subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture unless otherwise indicated. 8. Optional Right of Redemption The Company may, at its option, redeem the Notes (a) in whole or in part, on or after June 1, 2016 at the Par Redemption Amount; provided that if the Notes are not redeemed in whole, at least $50 million aggregate principal amount of the Notes (excluding Notes held by the Company or any of its Affiliates) remains outstanding after giving effect to such redemption; or (b) in whole but not in part at any time at the Make-Whole Redemption Amount. 9. No Sinking Fund. The Notes will not be subject to a sinking fund provision. 10. Subordination The payment of principal of and interest on this Note is, to the extent and in the manner provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all amounts then due on all Senior Indebtedness of the Company, and this Note is issued subject to such subordination provisions contained in the Indenture. Each Holder of this Note, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee such Holder's attorney-in-fact for any and all such purposes. 11. Defaults and Remedies The Indenture provides for Events of Default and remedies relating thereto with respect to the Notes as set forth in Article Seven of the Base Indenture as supplemented by Section 2.10 of the First Supplemental Indenture. 12. Amendment; Supplement The Indenture provides for amendments, supplements and waivers with respect to the Indenture as set forth in Article Eleven of the Base Indenture, as supplemented by Section 2.16 of the First Supplemental Indenture. 13. Restrictive Covenants The Indenture provides restrictive covenants with respect to the Notes as set forth in Article Twelve of the Base Indenture as supplemented by Article III of the First Supplemental Indenture. 14. Denomination; Transfer; Exchange The Notes are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes so issued are exchangeable for a like aggregate principal amount at maturity of Notes of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Trustee, duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the same aggregate principal amount at maturity will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto. 15. Persons Deemed Owners The registered Holder of this Note shall be treated as its owner for all purposes. 16. Tax Treatment The Company agrees, and by acquiring an interest in a Note each beneficial owner of a Note agrees, to treat the Notes as indebtedness for U.S. federal income tax purposes. 17. Defeasance Subject to certain conditions contained in the Indenture, the Company's obligations under the Indenture and some or all of the Notes may at any time be terminated if the Company deposits with the Trustee cash and/or U.S. Government Obligations sufficient in the opinion of a nationally recognized firm of independent public accountants to pay and discharge each installment of principal, premium, if any, and interest on the Notes to Stated Maturity. 18. No Recourse Against Others No recourse shall be had for the payment of the principal of or the interest on this Note, or for any claim based hereon or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released. 19. Authentication This Note shall not be valid until the Trustee (or authenticating agent) executes the certificate of authentication on the other side of this Note. 20. Governing Law The Indenture and this Note shall be governed by, and construed in accordance with, the laws of the State of New York. EX-8 5 taxop.txt (EXHIBIT 8.1) Exhibit 8.1 [WACHTELL, LIPTON, ROSEN & KATZ LETTERHEAD] May 26, 2006 Ameriprise Financial, Inc. 55 Ameriprise Financial Center Minneapolis, Minnesota 55474 Ladies and Gentlemen: We have acted as counsel to Ameriprise Financial, Inc, a Delaware corporation ("AMERIPRISE"), in connection with the Registration Statement filed on May 5, 2006, as amended through the date hereof, and the Prospectus Supplement dated the date hereof (the "OFFERING DOCUMENTS"), for the purpose of selling $500,000,000 principal amount of 7.518% Junior Subordinated Notes (the "NOTES") due June 1, 2066. In connection with this opinion, we have examined the form of Indenture of Ameriprise and the form of Note, each to be entered into in connection with the offering of the Notes, the Offering Documents and such other documents and corporate records as we have deemed necessary or appropriate for purposes of our opinion. In our examination, we have assumed that (i) the statements concerning the issuance of the Notes contained in the Offering Documents are true, correct and complete, (ii) the terms of the documents referred to in the preceding paragraph will be complied with, (iii) the factual representations made to us by the Company in its officer's certificate dated as of the date hereof and delivered to us for purposes of this opinion (the "OFFICER'S CERTIFICATE") are true, correct and complete, and (iv) any factual representations made in the Offering Documents or the Officer's Certificate "to the best knowledge of," in the "belief" of, or similarly qualified are true, May 26, 2006 Page 2 correct and complete without such qualification. If any of the above described assumptions are untrue for any reason or if the issuance of the Notes is consummated in a manner that is inconsistent with the manner in which it is described in the Offering Documents, our opinion as expressed below may be adversely affected and may not be relied upon. Subject to and based solely upon the foregoing, we are of the opinion that, (1) the Notes will be treated as indebtedness of Ameriprise for United States federal income tax purposes (although there is no controlling authority directly on point) and (2) insofar as it relates to matters of United States federal tax law, the discussion set forth in the Prospectus Supplement under the heading, "CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS," is a fair and accurate summary of the matters discussed therein. We are rendering this opinion to you solely in connection with the Prospectus Supplement, and this opinion is not to be relied upon by any other person or for any other purpose. Very truly yours, /s/ Wachtell, Lipton, Rosen and Katz EX-23 6 consent.txt (EXHIBIT 23.1) Exhibit 23.1 Ameriprise Financial, Inc. 55 Ameriprise Financial Center Minneapolis, Minnesota We hereby consent to the filing of this opinion with the Securities and Exchange Commission (the "Commission") as an exhibit to the Form 8-K to be filed with the Commission in connection with the issuance and sale of the 7.518% Junior Subordinated Notes due 2066 of Ameriprise Financial, Inc. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended. /s/ Wachtell, Lipton, Rosen & Katz - ----------------------------------- Wachtell, Lipton, Rosen & Katz May 26, 2006 -----END PRIVACY-ENHANCED MESSAGE-----