EXHIBIT 1.1
The Bank of New York Company, Inc.
Underwriting Agreement Standard Provisions
(June 2001)
From time to time, The Bank of New York Company, Inc., a New York
corporation (the "Company"), may enter into one or more pricing agreements
(each, a "Pricing Agreement") in the form of Annex I hereto, together with, if
such Pricing Agreement so specifies, a statutory business trust formed under the
laws of the State of Delaware (each, a "Trust" and, collectively, the "Trusts")
to offer and sell Preferred Securities (as defined herein). Each such Pricing
Agreement, with such additions, deletions or modifications to these Underwriting
Agreement Standard Provisions (these "Standard Provisions") as the parties
thereto may determine, and, subject to the terms and conditions stated herein
and therein, shall provide that the Company or the Trust identified in such
Pricing Agreement (such Trust being the "Designated Trust" with respect to such
Pricing Agreement), as the case may be, shall issue and sell to the firms named
in Schedule I to such Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain securities of the Company or the Designated Trust, as
the case may be, specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Designated Securities"). If
specified in such Pricing Agreement, the Company or the Designated Trust, as the
case may be, may grant to the Underwriters the right to purchase at their
election an additional number of such securities specified in such Pricing
Agreement as provided in Section 3 hereof (with respect to such Pricing
Agreement, the "Optional Designated Securities"). The Firm Designated Securities
and the Optional Designated Securities, if any, with respect to such Pricing
Agreement, are collectively called the "Designated Securities."
If the Designated Securities are to be issued and sold to the Underwriters
by the Company, such Designated Securities shall, as specified in the applicable
Pricing Agreement, consist of either (i) a series of the Company's senior debt
securities (the "Senior Debt Securities") to be issued pursuant to an indenture
dated as of July 18, 1991, as it may be supplemented from time to time (the
"Senior Indenture"), between the Company and Bankers Trust Company, as trustee,
(ii) a series of the Company's senior subordinated debt securities (the "Senior
Subordinated Debt Securities") to be issued pursuant to an indenture dated as of
October 1, 1993, as it may be supplemented from time to time (the "Senior
Subordinated Indenture"), between the Company and Chase Manhattan Trust Company,
National Association, as trustee, (iii) a series of the Company's junior
subordinated debt securities (the "Junior Subordinated Debt Securities") to be
issued pursuant to an indenture dated as of December 25, 1996, as it may be
supplemented from time to time (the "Junior Subordinated Indenture" and,
together with the Senior Indenture and the Senior Subordinated Indenture, each,
an "Indenture"), between the Company and Bank One, National Association, as
trustee (the "Junior Trustee"), (iv) a series of the Company's preferred stock,
without par value (the "No Par Preferred Stock"), or a series of the Company's
preferred stock, par value $2.00 per share (together with the No Par Preferred
Stock, the "Preferred Stock"), or (v) shares of the Company's common stock, par
value $7.50 per share (the "Common Stock"), including a preferred stock purchase
right for each such share
issued pursuant to a rights agreement dated as of December 10, 1985, as amended
from time to time, between the Company and The Bank of New York, as rights
agent. If specified in the applicable Pricing Agreement, the Preferred Stock
shall be deposited by the Company against delivery of receipts (the "Depositary
Receipts") to be issued by the bank or trust company named in such Pricing
Agreement as the depositary (the "Depositary") under a deposit agreement, to be
dated as of the date specified in such Pricing Agreement (the "Deposit
Agreement"), among the Company, the Depositary and the holders from time to time
of the Depositary Receipts issued thereunder. Such Depositary Receipts will
evidence depositary shares (the "Depositary Shares") and each Depositary Share
will represent the number of shares of Preferred Stock, or fractions thereof,
specified in such Pricing Agreement.
If the Designated Securities are to be issued and sold to the Underwriters
by the Designated Trust, such Designated Securities shall, as specified in the
applicable Pricing Agreement, consist of preferred securities representing
preferred beneficial interests in the Designated Trust (the "Preferred
Securities") to be issued pursuant to an amended and restated trust agreement
with a bank or trust company named in such Pricing Agreement to be dated as of
the date specified in such Pricing Agreement (each, a "Trust Agreement"). The
proceeds of the concurrent sale of such Preferred Securities to the public and
of the common securities representing common ownership interests in the
Designated Trust (the "Common Securities") to the Company are to be invested in
a series of Junior Subordinated Debt Securities specified in such Pricing
Agreement (the "Corresponding Junior Subordinated Debt Securities"). Such
Preferred Securities will be guaranteed by the Company (each, a "Guarantee") to
the extent set forth in a guarantee agreement to be dated as of the date
specified in such Pricing Agreement (each, a "Guarantee Agreement") between the
Company and a bank or trust company named in such Pricing Agreement (the
"Guarantee Trustee"). In connection with the issuance and sale of such Preferred
Securities, the Designated Trust will enter into an expense agreement to be
dated as of the date specified in such Pricing Agreement (each, an "Expense
Agreement") with the Company pursuant to which the Company will reimburse the
Designated Trust for certain expenses set forth therein.
The terms of any particular issuance of Designated Securities shall be as
specified in the Pricing Agreement with respect thereto as described herein.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who will
act without any firm being designated as their representative. These Standard
Provisions shall not be construed as an obligation of the Company or any Trust,
as the case may be, to sell any of its securities or as an obligation of any
Underwriter to purchase any of such securities. The obligation of the Company or
any Trust, as the case may be, to issue and sell any of its securities and the
obligation of any Underwriter to purchase any of such securities shall be
evidenced by the Pricing Agreement with respect to only the Designated
Securities specified therein. Each Pricing Agreement shall specify the number of
Firm Designated Securities, the maximum number of Optional Designated
Securities, if any, the initial public offering price of the Designated
Securities or the manner of determining such price, certain terms of such
Designated
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Securities, including the terms on which and terms of the securities into which
such Designated Securities will be exchangeable or convertible, if any, the
purchase price to the Underwriters of such Designated Securities, the names of
the Underwriters of such Designated Securities, the names of the Representatives
of such Underwriters, if any, the number of such Designated Securities to be
purchased by each Underwriter and the compensation, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Firm Designated Securities and Optional Designated
Securities, if any, and payment therefor. The Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts) and may be evidenced
by an exchange of facsimile communications or any other rapid transmission
device designed to produce a written record of communications transmitted. These
Standard Provisions will be incorporated by reference in the Pricing Agreement
with any such additions, deletions or modifications hereto as the parties
thereto may determine and shall be deemed to be a part of the Pricing Agreement
to the same extent as if such provisions had been set forth in full therein. The
term "Pricing Agreement" as used herein shall refer to the Pricing Agreement
relating to particular Designated Securities, including the incorporation
therein of these Standard Provisions as so modified. The obligations of the
Underwriters under each Pricing Agreement shall be several and not joint.
2. Each of the Company and the Designated Trust, if applicable, jointly
and severally, represents and warrants to, and agrees with, each of the
Underwriters that (it being understood that additional representations and
warranties may be agreed to by the Representatives and the Company and the
Designated Trust, if applicable, in the Pricing Agreement to reflect, among
other things, any conversion or exchange features relating to the Designated
Securities):
(a) A registration statement on Form S-3 (the file number of which
shall be specified in the Pricing Agreement) (the "Initial Registration
Statement") in respect of certain securities of the Company and the Trusts,
including the Designated Securities, has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives, have been declared effective by the
Commission in such form; other than the registration statement, if any (the file
number of which shall be specified in the Pricing Agreement), increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) of the rules and regulations of the Commission under the Securities
Act of 1933, as amended (the "Act"), which became effective under the Act upon
filing, no other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Act, each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or any Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial Registration
Statement or used in connection with the offering and sale of the Designated
Securities (other than in making confirmations of sales of such Designated
Securities) is hereinafter called a "Preliminary Prospectus"; the various parts
of the Initial Registration Statement and any Rule 462(b) Registration
Statement, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the Initial
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Registration Statement at the time such part of the Initial Registration
Statement became effective, but excluding any Statement of Eligibility under the
Trust Indenture Act (as defined herein) (Form T-1) of a trustee contained
therein, if applicable, or such part of such Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, and including, to the extent
applicable, the information deemed to be included therein pursuant to Rule 430A
of the rules and regulations of the Commission under the Act, each as amended at
the time such part of such registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the prospectus
relating to the securities of the Company and the Trusts registered under any
prior registration statement, the Initial Registration Statement or the Rule
462(b) Registration Statement, as the case may be, in the form in which it has
most recently been filed with the Commission on or prior to the date of the
relevant Pricing Agreement, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such Preliminary
Prospectus or such Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus or such Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or such Prospectus, as
the case may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Initial Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the date
of such filing).
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and none of such
documents contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company and, if
applicable, to the Designated Trust by an Underwriter through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Designated Securities.
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(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act, the rules and regulations of the Commission thereunder, and, if applicable,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, as
to the Registration Statement and any amendment thereto, do not and will not, as
of the applicable effective date as to the Registration Statement and such
amendment 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, as to the Prospectus and any amendment or supplement
thereto, do not and will not, as of the applicable filing date as to the
Prospectus and such amendment or supplement, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company and, if
applicable, to the Designated Trust by an Underwriter through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Designated Securities or, if applicable, to that part of the
Registration Statement which shall constitute the Statement of Eligibility under
the Trust Indenture Act (Form T-1) of a trustee.
(d) Since the date of the latest audited financial statements
included in or incorporated by reference in the Registration Statement and the
Prospectus, there has not been any material adverse change, or any development
involving a prospective material adverse change, in the creditworthiness of the
Company and its subsidiaries on a consolidated basis otherwise than as set forth
or contemplated in the Prospectus.
(e) Each of the Company and The Bank of New York (the "Bank") has
been duly organized and is validly existing as a corporation or banking
corporation, as the case may be, and is an existing corporation or banking
corporation, as the case may be, in good standing under the laws of the State of
New York.
(f) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
nonassessable; and all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued, are fully paid and nonassessable
(except as provided in Article III of the Banking Law of the State of New York)
and are owned by the Company, free and clear of all liens, encumbrances,
equities or claims.
(g) If the Designated Securities are to be issued and sold to the
Underwriters by the Company, in the case of either Senior Debt Securities,
Senior Subordinated Debt Securities or Junior Subordinated Debt Securities, the
Designated Securities have been duly authorized by the Company and, when validly
issued by the Company and validly authenticated and delivered by the applicable
trustee pursuant to the applicable Indenture, will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable principles.
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Additionally:
(1) In the case of Senior Debt Securities, such Senior Debt
Securities will be entitled to the benefits provided by the Senior
Indenture; the Senior Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act and the Senior Indenture constitutes a valid and legally
binding instrument of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles; and such Senior Debt Securities and the Senior
Indenture will conform in all material respects to the descriptions thereof
in the Prospectus as amended or supplemented with respect to such Senior
Debt Securities;
(2) In the case of Senior Subordinated Debt Securities, such
Senior Subordinated Debt Securities will be entitled to the benefits
provided by the Senior Subordinated Indenture; the Senior Subordinated
Indenture has been duly authorized, executed and delivered by the Company
and has been duly qualified under the Trust Indenture Act and the Senior
Subordinated Indenture constitutes a valid and legally binding instrument
of the Company enforceable against the Company in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles; and such Senior Subordinated Debt Securities and the Senior
Subordinated Indenture will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented with
respect to such Senior Subordinated Debt Securities; and
(3) In the case of Junior Subordinated Debt Securities, such
Junior Subordinated Debt Securities will be entitled to the benefits of the
Junior Subordinated Indenture; the Junior Subordinated Indenture has been
duly authorized, executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act and the Junior Subordinated
Indenture constitutes a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equitable principles; and such Junior Subordinated
Debt Securities and the Junior Subordinated Indenture will conform in all
material respects to the descriptions thereof in the Prospectus as amended
or supplemented with respect to such Junior Subordinated Debt Securities.
(h) If the Designated Securities are to be issued and sold to the
Underwriters by the Company, in the case of either shares of Preferred Stock or
Common Stock, such shares have been duly authorized and, when such shares are
issued and delivered pursuant to the Pricing Agreement with respect to such
shares, such shares will be duly and validly issued and fully paid and non-
assessable; and such shares will conform in all material respects to the
descriptions thereof contained in the Prospectus as amended or supplemented with
respect to such shares.
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(i) If the Designated Securities are to be issued and sold to the
Underwriters by the Company, in the case of Depositary Shares, such Depositary
Shares have been duly authorized and, when such Depositary Shares are issued and
delivered pursuant to the Deposit Agreement and the Pricing Agreement with
respect to such Depositary Shares, the related Depositary Receipts will entitle
the holders thereof to the rights specified in such Depositary Receipts and in
the Deposit Agreement; and such Depositary Shares will conform in all material
respects to the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Depositary Shares.
(j) If the Designated Securities are to be issued and sold to the
Underwriters by the Company, the issue and sale of the Designated Securities and
the compliance by the Company with all of the provisions of the Designated
Securities, the Pricing Agreement, the Deposit Agreement and the applicable
Indenture, if any, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) the Certificate of
Incorporation or By-laws of the Company or the charter or by-laws of any of its
subsidiaries or (iii) any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties except, in the case of
clauses (i) and (iii), any such conflict, breach or violation that would not
have a material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as a whole, or on the
issuance and sale of the Designated Securities; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Designated
Securities or the consummation by the Company of the transactions contemplated
by the Pricing Agreement, the Deposit Agreement or the applicable Indenture, if
any, except such as have been, or will have been prior to the Time of Delivery
(as defined in Section 4 hereof), obtained under the Act and the Trust Indenture
Act, if applicable, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Designated Securities by
the Underwriters.
(k) If the Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust:
(1) The Designated Trust has been duly organized and is validly
existing as a business trust in good standing under the laws of the State
of Delaware, with power and authority (trust and other) to own its property
and conduct its business as described in the Prospectus, and to enter into
and perform its obligations under the Pricing Agreement and the Designated
Securities and to consummate the transactions contemplated by the Pricing
Agreement; the Designated Trust has no subsidiaries and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Designated Trust; the Designated Trust has
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conducted and will conduct no business other than the transactions
contemplated by the Pricing Agreement and described in the Prospectus as
amended and supplemented with respect to the Designated Securities; the
Designated Trust is not a party to or bound by any agreement or instrument
other than the Pricing Agreement, the Trust Agreement of the Designated
Trust and the agreements and instruments contemplated by such Trust
Agreement and described in the Prospectus as amended and supplemented with
respect to the Designated Securities; the Designated Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by the Pricing Agreement and the Trust Agreement of the
Designated Trust and described in the Prospectus as amended and
supplemented with respect to the Designated Securities; the Designated
Trust is not a party to or subject to any action, suit or proceeding of any
nature; the Designated Trust is not, and at the Time of Delivery will not
be, classified as an association taxable as a corporation for United States
federal income tax purposes;
(2) The Designated Securities have been duly authorized on
behalf of the Designated Trust by the Company, as depositor of the
Designated Trust, and, when the Designated Securities are issued and
delivered pursuant to the Pricing Agreement, the Designated Securities will
have been duly and validly issued and fully paid and non-assessable
beneficial interests in the Designated Trust entitled to the benefits
provided by the Trust Agreement; and the Designated Securities will conform
in all material respects to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to the Designated
Securities;
(3) The holders of the Designated Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; the
issuance of the Designated Securities is not subject to preemptive or other
similar rights;
(4) The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the Company, as depositor
of the Designated Trust, and, upon delivery by the Designated Trust to the
Company against payment therefor as set forth in the Trust Agreement, will
be duly and validly issued and non-assessable beneficial interests in the
Designated Trust and will conform in all material respects to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to the Designated Securities; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and, at
the Time of Delivery, all of the issued and outstanding Common Securities
of the Designated Trust will be directly owned by the Company, free and
clear of all liens, encumbrances, equities or claims;
(5) The Guarantee Agreement, the Trust Agreement, the
Corresponding Junior Subordinated Debt Securities, the Expense Agreement
and the Junior Subordinated Indenture (collectively referred to as the
"Company Agreements") have each been duly authorized by the Company; the
Junior Subordinated Indenture has been duly executed and delivered by the
Company and constitutes a valid and legally binding instrument of the
Company enforceable against the Company in accordance with
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its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles; except for the Junior Subordinated Indenture, each Company
Agreement, when validly executed and delivered by the Company and, in the
case of the Guarantee, by the Guarantee Trustee, and, in the case of the
Trust Agreement, by the Issuer Trustees (as defined in the Trust Agreement)
and, in the case of the Corresponding Junior Subordinated Debt Securities,
when validly issued by the Company and validly authenticated and delivered
by the Junior Trustee pursuant to the Junior Subordinated Indenture, will
constitute a valid and legally binding instrument or obligation, as the
case may be, of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles; the Trust Agreement, the Junior Subordinated Indenture and the
Guarantee Agreement have each been duly qualified under the Trust Indenture
Act; the Corresponding Junior Subordinated Debt Securities are entitled to
the benefits of the Junior Subordinated Indenture; and the Company
Agreements will conform in all material respects to the descriptions
thereof in the Prospectus as amended or supplemented with respect to the
Designated Securities;
(6) The issue and sale of the Designated Securities and the
compliance by the Designated Trust with all of the provisions of the
Designated Securities, the Trust Agreement, the Pricing Agreement, the
purchase of the Corresponding Junior Subordinated Debt Securities by the
Designated Trust and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Designated Trust is a party or, by
which the Designated Trust is bound or to which any of the property or
assets of the Designated Trust is subject, nor will such action result in
any violation of the provisions of the Trust Agreement, the certificate of
trust relating to the Designated Trust or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Designated Trust or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Designated Securities and the Common Securities by the
Designated Trust, the purchase of the Corresponding Junior Subordinated
Debt Securities by the Designated Trust or the consummation by the
Designated Trust of the transactions contemplated by the Pricing Agreement
or the Trust Agreement, except such as have been, or will have been, prior
to the Time of Delivery, obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky laws
in connection with the purchase and distribution of the Designated
Securities by the Underwriters; and
(7) The issuance by the Company of the Guarantee, the issuance
and delivery by the Company of the Corresponding Junior Subordinated Debt
Securities, the compliance by the Company with all of the provisions of the
Pricing Agreement and the Company Agreements and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms
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or provisions of, or constitute a default under, (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (ii) the
Certificate of Incorporation or By-laws of the Company or the charter or
by-laws of any of its subsidiaries or (iii) any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties except, in the case of clauses (i) and (iii), any
such conflict, breach or violation that would not have a material adverse
effect on the financial condition or results of operations of the Company
and its subsidiaries, considered as a whole, or on the issuance of the
Guarantee or the Corresponding Junior Subordinated Debt Securities; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issuance of the Guarantee, the issuance and delivery of the Corresponding
Junior Subordinated Debt Securities or the consummation by the Company of
the transactions contemplated by the Pricing Agreement or the Company
Agreements except such as have been, or will have been, prior to the Time
of Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or blue sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters.
(l) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting, the Company or any of
its subsidiaries (including the Designated Trust, if applicable), which might
result in any material adverse change in the financial condition, shareholders'
equity or results of operations of the Company and its subsidiaries (including
the Designated Trust, if applicable) considered as one enterprise.
(m) Neither the Designated Trust, if applicable, nor the Company is,
nor after giving effect to the offering and sale of the Designated Securities
will either be, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
(n) The accounting firm named in the Prospectus as amended or
supplemented as having certified the financial statements of the Company and its
subsidiaries included in or incorporated by reference in such Prospectus are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(o) The Pricing Agreement has been duly authorized, executed and
delivered by the Company and, if applicable, the Designated Trust.
3. Upon the execution of the Pricing Agreement applicable to the
Designated Securities and authorization by the Representatives of the release of
the Firm Designated Securities, the several Underwriters propose to offer the
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
10
The Company or the Designated Trust, as the case may be, may specify in the
Pricing Agreement applicable to any Designated Securities that the Company or
the Designated Trust, as the case may be, thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
number of Optional Designated Securities specified in such Pricing Agreement, on
the terms set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such
election to purchase Optional Designated Securities may be exercised only by
written notice from the Representatives to the Company, and if applicable, to
the Designated Trust, given within the period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are to
be delivered (the Subsequent Time of Delivery as defined in Section 4 hereof, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives, the
Company, and if applicable, the Designated Trust, otherwise agree in writing,
earlier than or later than the respective number of business days after the date
of such notice set forth in such Pricing Agreement).
The number of Optional Designated Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Company, and if applicable, the Designated Trust, has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company, and if applicable, the Designated Trust, has not been so advised, the
number of Optional Designated Securities to be so added shall be, in each case,
their proportion of Optional Designated Securities which the number of Firm
Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate number of Firm Designated Securities (rounded
as the Representatives may determine to the nearest 100 securities). The total
number of Designated Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate number of Firm Designated
Securities set forth in Schedule I to such Pricing Agreement plus the aggregate
number of Optional Designated Securities which the Underwriters elect to
purchase.
4. Certificates representing the Firm Designated Securities and the
Optional Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours prior notice to
the Company, shall be delivered by or on behalf of the Company or the Designated
Trust, as the case may be, to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer in immediately available funds to the
account of the Company or the Designated Trust, as the case may be, specified in
such Pricing Agreement, (i) with respect to the Firm Designated Securities, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company or the Designated Trust, as the case may be, may agree upon in
writing, such time and date being herein called the "First Time of Delivery" and
(ii) with respect to the Optional Designated Securities, if any, in the manner
and at the time and date specified by the Representatives in the written notice
given by the Representatives of the Underwriters' election to purchase such
Optional Designated Securities, or at such other time and date as the
11
Representatives and the Designated Securities may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Subsequent
Time of Delivery". Each such time and date for delivery is herein called a
"Time of Delivery".
5. The Company and the Designated Trust, if applicable, jointly and
severally, agree with each of the Underwriters of the Designated Securities:
(a) To file the Prospectus as amended or supplemented with respect to
the Designated Securities with the Commission; to make no further amendment or
any supplement to the Registration Statement or the Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such Designated
Securities and prior to the Time of Delivery for such Designated Securities
which shall be reasonably disapproved by the Representatives for such Designated
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after the Time of
Delivery for such Designated Securities and to furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of such Designated Securities; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus relating to such
Designated Securities, of the suspension of the qualification of such Designated
Securities or, if applicable, the Corresponding Junior Subordinated Debt
Securities issuable upon termination of the Designated Trust, for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus relating to such
Designated Securities or suspending any such qualification, promptly to use its
best efforts to obtain the withdrawal of such order.
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated Securities or,
if applicable, the Corresponding Junior Subordinated Debt Securities issuable
upon termination of the Designated Trust, for offering and sale under the
securities laws of such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith neither the Company nor any applicable Designated Trust shall be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time prior to nine months after the time of issue of the Prospectus in
connection with the offering or sale of such Designated Securities or, if
applicable, the Corresponding Junior Subordinated Debt Securities issuable upon
termination of the Designated Trust, and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of
12
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act
or, if applicable, the Trust Indenture Act, to notify the Representatives and
upon their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus that will correct such statement or
omission or effect such compliance; and in case any Underwriter is required to
deliver a Prospectus in connection with sales of such Designated Securities at
any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act.
(d) In the case of the Company, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Initial Registration Statement
(as defined in Rule 158(c) of the rules and regulations of the Commission under
the Act), an earning statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company or the Designated Trust, as the case may be, Rule 158 of the rules and
regulations of the Commission under the Act).
(e) If such Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust, during the period beginning from the date
of the Pricing Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives and
(ii) the last Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of, except as provided in the
Pricing Agreement, any preferred securities in any of the Trusts, any other
beneficial interests in the assets of the Designated Trust or any other Trust,
or any preferred securities or any other securities of the Designated Trust or
the Company, as the case may be, that are substantially similar to such
Designated Securities (including any guarantee of such securities) or any
securities that are convertible into or exchangeable for, or that represent the
right to receive securities, preferred securities or any such substantially
similar securities of either the Designated Trust, any other Trust or the
Company that are subordinated to the Senior Debt (as defined in the Junior
Subordinated Indenture) of the Company in a manner substantially similar to the
subordination of the Corresponding Junior Subordinated Debt Securities without
the prior written consent of the Representatives.
(f) If such Designated Securities are to be issued and sold to the
Underwriters by the Company, during the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) the last
Time of Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of, except as provided in the Pricing Agreement, any
securities of the
13
Company (other than (a) pursuant to employee stock option, profit sharing or
thrift plans or the Company's Dividend Reinvestment and Stock Purchase Plan, (b)
on exercise of warrants outstanding on the date of such Pricing Agreement, (c)
on the conversion of convertible securities outstanding on the date of such
Pricing Agreement or (d) directly or indirectly to a corporation or subsidiary,
division or other business unit thereof, or a similar transaction, provided,
however, that such corporation or its shareholders shall receive shares of
Preferred Stock or Common Stock or securities substantially similar thereto, or
securities convertible into, or exchangeable for, such shares or any security
substantially similar thereto) that are substantially similar to such Designated
Securities, without the prior written consent of the Representatives.
(g) To furnish to the holders of such Designated Securities as soon
as practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and cash flow of
the Company and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Initial Registration Statement), consolidated
summary financial information of the Company and its subsidiaries for such
quarter in reasonable detail.
(h) If the Company and, if applicable, the Designated Trust elect to
rely upon Rule 462(b) of the rules and regulations of the Commission under the
Act, the Company and, if applicable, the Designated Trust shall file a Rule
462(b) Registration Statement with the Commission in compliance with such Rule
462(b) by 10:00 p.m., Washington, D.C. time, on the date of the Pricing
Agreement with respect to such Designated Securities and the Company and, if
applicable, the Designated Trust shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of
the rules and regulations of the Commission under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's and, if applicable, the Trust's
counsel and accountants in connection with the registration of the Designated
Securities and all other expenses in connection with the preparation, printing
and filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any agreement among underwriters, these Standard Provisions, the
Pricing Agreement, any blue sky surveys or memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Designated Securities; (iii)
all expenses in connection with the qualification of the Designated Securities
and, if applicable, the Guarantee and the Corresponding Junior Subordinated Debt
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with such
blue sky surveys or memoranda; (iv) any fees charged by securities rating
services for rating the Designated Securities and, if applicable, the
Corresponding Junior Subordinated Debt Securities; (v) any filing fees incident
to, and the fees and disbursements of counsel for the Underwriters in connection
with, any required reviews by the National
14
Association of Securities Dealers, Inc. of the terms of the sale of the
Designated Securities and, if applicable, the issuance of the Guarantee and the
Corresponding Junior Subordinated Debt Securities; (vi) the cost of preparing
the Designated Securities and, if applicable, the Corresponding Junior
Subordinated Debt Securities; (vii) the fees and expenses of any trustee and any
agent of such trustee and the fees and disbursements of counsel for such trustee
in connection with the Trust Agreement, any Indenture, the Guarantee Agreement
and the Designated Securities; (viii) the cost of qualifying the Designated
Securities with The Depository Trust Company; (ix) all fees and expenses in
connection with listing the Designated Securities (and the Corresponding Junior
Subordinated Debt Securities, if necessary) on the New York Stock Exchange or
any other organization and the cost of registering the Designated Securities
(and the Corresponding Junior Subordinated Debt Securities, if necessary) under
Section 12 of the Exchange Act; and (x) all other costs and expenses incident to
the performance of its obligations or the obligations of the Designated Trust
under the Pricing Agreement that are not otherwise specifically provided for in
this Section 6. It is understood, however, that, except as provided in this
Section 6 and Section 8 and Section 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Designated Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of the Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust, if
applicable, and the Company in or incorporated by reference in the Pricing
Agreement relating to such Designated Securities are, at and as of each Time of
Delivery for such Designated Securities true and correct, the condition that
such Designated Trust and the Company shall have performed all of their
respective obligations hereunder and thereunder theretofore to be performed, and
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction.
(b) Pillsbury Winthrop LLP, counsel for the Underwriters, shall have
furnished to the Representatives such written opinion or opinions, dated each
Time of Delivery for such Designated Securities, with respect to, as applicable,
the incorporation of the Company and the formation of the Designated Trust, the
validity of the Designated Securities, the Corresponding Junior Subordinated
Debt Securities and the Guarantee and the Registration Statement and the
Prospectus as amended or supplemented and such other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters.
(c) Xxxx Xxxxxxxx, Senior Counsel of The Bank of New York, or other
counsel designated by the Company reasonably acceptable to the Representatives
and specified in the applicable Pricing Agreement, shall have furnished to the
Representatives such written opinion or opinions to the effect of paragraphs (1)
through (6), inclusive, below, and, if the
15
Designated Securities are Preferred Securities, Xxxxxxxx & Xxxxxxxx, special
counsel to the Company, or other counsel designated by the Company reasonably
acceptable to the Representatives and specified in the applicable Pricing
Agreement, shall have furnished to the Representatives such written opinion or
opinions to the effect of paragraph (2), the first clause of paragraph (3), and
paragraphs (4), 6(i), 6(ii), 6(iii) and 6(vi) below, in each case, dated each
Time of Delivery for such Designated Securities, and in each case in form and
substance satisfactory to the Representatives:
(1) Each of the Company and the Bank has been duly incorporated,
and is an existing corporation or banking corporation, respectively, in
good standing under the laws of the State of New York and the Company has
the corporate power and authority to own its properties and conduct its
business as described in the Prospectus as amended or supplemented relating
to the Designated Securities;
(2) The Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the Company;
(3) Each part of the Registration Statement, when such part
became effective, and the Prospectus as amended and supplemented, as of its
date (other than the financial statements and other financial data therein,
as to which such counsel need express no opinion), appeared on their face
to be appropriately responsive, in all material respects relevant to the
offering of the Designated Securities, to the requirements of the Act, the
Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder; and nothing which came to the attention of such
counsel in the course of such counsel's review (as described in such
opinion) has caused such counsel to believe that, insofar as relevant to
the offering of the Designated Securities, any part of the Registration
Statement, when such part became effective, contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
or that the Prospectus as amended and supplemented, as of its date (other
than the financial statements and other financial data therein, as to which
such counsel need express no opinion), contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; also, nothing that has come to such
counsel's attention in the course of certain procedures (as described in
such opinion) has caused such counsel to believe that the Prospectus as
amended and supplemented, as of the date and time of delivery of such
opinion, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (such counsel may state that he does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus as amended and
supplemented except for those made under the captions in the Prospectus as
amended or supplemented relating to the Designated Securities and to the
underwriting arrangements relevant to the Designated Securities, in each
case as identified in such opinion, insofar as they relate to provisions of
documents therein described, and that such counsel does not express any
opinion or belief as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus as amended and
supplemented
16
or as to any Statement of the Eligibility under the Trust Indenture Act
(Form T-1) of the applicable trustee);
(4) The statements set forth under the captions in the
Prospectus as amended or supplemented relating to the Designated Securities
and to the underwriting arrangements relevant to the Designated Securities,
insofar as they relate to provisions of documents therein described,
constitute accurate summaries of the terms thereof in all material
respects;
(5) If the Designated Securities are to be issued and sold to
the Underwriters by the Company:
(i) In the case of either Senior Debt Securities, Senior
Subordinated Debt Securities or Junior Subordinated Debt Securities,
the applicable Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act and constitutes a valid and legally binding instrument of the
Company enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles;
(ii) In the case of either Senior Debt Securities, Senior
Subordinated Debt Securities or Junior Subordinated Debt Securities,
the Designated Securities have been duly authorized, executed and
delivered by the Company, authenticated and issued in conformity with
the terms of the applicable Indenture, are entitled to the benefits of
such Indenture and constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles;
(iii) In the case of shares of Preferred Stock or Common
Stock, such shares have been duly authorized and validly issued and
are fully paid and non-assessable;
(iv) In the case of Depositary Shares, the Depositary
Shares have been duly authorized and the Deposit Agreement has been
duly authorized, executed and delivered by the Company and constitutes
a valid and legally binding instrument of the Company enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equitable principles; the
Depositary Receipts have been duly issued in accordance with the
Deposit Agreement and the persons in whose names the Depositary
Receipts are registered will be entitled to the rights specified in
the Depositary Receipts and in the Deposit Agreement;
17
(v) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company on or prior to the
date of such opinion under the Federal laws of the United States and the
laws of the State of New York for the issuance, sale and delivery of the
Designated Securities by the Company to the Underwriters, in accordance
with the Pricing Agreement, have been obtained or made; provided, however,
that such counsel need not express any opinion with respect to state
securities laws; and
(vi) The execution and delivery by the Company of the
applicable Indenture, the Deposit Agreement and the Pricing Agreement do
not, and the issuance and sale of the Designated Securities in accordance
with the Pricing Agreement and the performance by the Company of its
obligations under the applicable Indenture, the Deposit Agreement, the
Pricing Agreement and the Designated Securities will not, violate the
Company's Certificate of Incorporation, as amended, or By-Laws, in each
case as in effect at the date of such opinion, result in a default under or
breach of the agreements listed in an annex to such opinion, in each case
as in effect at the date of such opinion, or violate any existing Federal
law of the United States or law of the State of New York; provided,
however, that such counsel need express no opinion with respect to Federal
or state securities laws, other antifraud laws, fraudulent transfer laws,
the Employee Retirement Income Security Act of 1974 and related laws that
restrict transactions between United States persons and citizens or
residents of certain foreign countries; provided, further, that insofar as
performance by the Company and its obligations under the applicable
Indenture, the Deposit Agreement, the Pricing Agreement and the Designated
Securities is concerned, such counsel need express no opinion as to
bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights.
(6) If the Designated Securities are to be issued and sold to
the Underwriters by the Designated Trust:
(i) The Company Agreements have each been duly authorized,
executed and delivered by the Company and constitute valid and legally
binding obligations of the Company enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles; and the Trust Agreement, the Junior Subordinated
Indenture and the Guarantee Agreement have each been duly qualified under
the Trust Indenture Act;
(ii) The Corresponding Junior Subordinated Debt Securities
have been duly authorized, executed and delivered by the Company,
authenticated and issued in conformity with the terms of the Junior
Subordinated Indenture, are entitled to the benefits of the Junior
Subordinated Indenture and constitute valid and legally binding obligations
of the Company enforceable against the Company
18
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equitable principles;
(iii) The Designated Securities have been duly authorized by
the Company, as depositor, on behalf of the Designated Trust;
(iv) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company or the
Designated Trust, as the case may be, on or prior to the date of such
opinion under the Federal laws of the United States and the laws of
the State of New York for the issuance, sale and delivery of the
Designated Securities by the Designated Trust to the Underwriters and
the issuance, sale and delivery by the Company to the Designated Trust
of the Corresponding Junior Subordinated Debt Securities and the
execution and delivery by the Company of the Guarantee Agreement, in
accordance with the Pricing Agreement, have been obtained or made;
provided, however, that such counsel need not express any opinion with
respect to state securities laws;
(v) The execution and delivery by the Company of the
Company Agreements and the Pricing Agreement do not, and the issuance,
sale and delivery of the Corresponding Junior Subordinated Debt
Securities as contemplated by the Prospectus as amended and
supplemented and the performance by the Company of its obligations
under the Company Agreements and the Pricing Agreement will not,
violate the Company's Certificate of Incorporation, as amended, or By-
Laws, in each case as in effect at the date of such opinion, result in
a default under or breach of certain agreements listed in an annex to
such opinion, in each case as in effect at the date of such opinion,
or violate any existing Federal law of the United States or law of the
State of New York; provided, however, that such counsel need not
express any opinion with respect to Federal or state securities laws,
other antifraud laws, fraudulent transfer laws, the Employee
Retirement Income Security Act of 1974 and related laws and laws that
restrict transactions between United States persons and citizens or
residents of certain foreign countries; provided, further, that
insofar as performance by the Company of its obligations under the
Company Agreements and the Pricing Agreement is concerned, such
counsel need not express any opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights; and
(vi) The Designated Trust is not an "investment company"
within the meaning of the Investment Company Act.
(d) If the Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust, Xxxxxx Xxxxxxxx LLP, special Delaware
counsel to the Designated Trust and the Company (or, if specified in the Pricing
Agreement relating to such Designated Securities, such other special Delaware
counsel reasonably acceptable to the Representatives), shall have furnished to
the Representatives such written opinion or opinions, dated each Time of
19
Delivery for such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(1) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the laws of the State
of Delaware, and all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of the Designated
Trust as a business trust have been made;
(2) Under the laws of the State of Delaware and the Trust
Agreement, the Designated Trust has the power and authority to own property
and conduct its business, all as described in the Prospectus;
(3) The Trust Agreement constitutes a valid and legally binding
obligation of the Company and the trustees named therein, enforceable
against each of the Company and such trustees in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles;
(4) Under the laws of the State of Delaware and the Trust
Agreement, the Designated Trust has the power and authority to (a) execute
and deliver the Pricing Agreement and to perform its obligations under the
Pricing Agreement, and (b) issue and perform its obligations under the
Designated Securities and the Common Securities;
(5) Under the laws of the State of Delaware and the Trust
Agreement, the execution and delivery by the Designated Trust of the
Pricing Agreement and the performance by the Designated Trust of its
obligations thereunder have been duly authorized by all necessary action on
the part of the Designated Trust;
(6) The Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and non-assessable beneficial
interests in the Designated Trust and are entitled to the benefits provided
by the Trust Agreement; the Securityholders, as beneficial owners of the
Designated Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
provided that such counsel may note that the Securityholders may be
obligated, pursuant to the Trust Agreement, to (a) provide indemnity and/or
security in connection with and pay taxes or governmental charges arising
from transfers or exchanges of certificates representing the Designated
Securities and the issuance of replacement certificates representing the
Designated Securities and (b) provide security and indemnity in connection
with requests of or directions to the Property Trustee (as defined in the
Trust Agreement) to exercise its rights and remedies under the Trust
Agreement;
(7) The Common Securities have been duly authorized by the Trust
Agreement and are validly issued and represent beneficial interests in the
Designated Trust;
20
(8) Under the laws of the State of Delaware and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities is not subject to preemptive rights;
(9) The issuance and sale by the Designated Trust of the
Designated Securities and the Common Securities, the execution and delivery
of the Pricing Agreement and the performance by the Designated Trust of the
Pricing Agreement, the consummation by the Designated Trust of the
transactions contemplated thereby and compliance by the Designated Trust
with its obligations thereunder will not violate (a) any of the provisions
of the certificate of trust of the Designated Trust or the Trust Agreement,
or (b) any applicable Delaware law or administrative regulation;
(10) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and has no
assets, activities (other than maintaining the Delaware Trustee (as defined
in the Trust Agreement) and the filing of documents with the Secretary of
State of the State of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the
Designated Trust solely in connection with the issuance and sale of the
Designated Securities and the Common Securities. In rendering the opinion
expressed in this paragraph (10), such counsel need express no opinion
concerning the securities laws of the State of Delaware; and
(11) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and has no
assets, activities (other than maintaining the Delaware Trustee and the
filing of documents with the Secretary of State of the State of Delaware)
or employees in the State of Delaware, the Securityholders (other than
those holders of the Designated Securities who reside or are domiciled in
the State of Delaware) will have no liability for income taxes imposed by
the State of Delaware solely as a result of their participation in the
Designated Trust, and the Designated Trust will not be liable for any
income tax imposed by the State of Delaware.
(e) If the Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust, Xxxxxxxx & Xxxxxxxx, tax counsel for the
Designated Trust and the Company, or other counsel designated by the Company
reasonably acceptable to the Representatives and specified in the applicable
Pricing Agreement, shall have furnished to the Representatives such written
opinion, dated each Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that such firm
confirms its opinion set forth in the Prospectus as amended or supplemented
under the caption "Certain Federal Income Tax Consequences" or a similar caption
set forth therein.
(f) If specified in the Pricing Agreement relating to the Designated
Securities, counsel for the Depositary or the applicable trustee shall have
furnished to the Representatives such written opinion or opinions, dated each
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, as to such matters reasonably requested by
the Representatives and set forth in such Pricing Agreement.
21
(g) At each Time of Delivery with respect to the Designated
Securities, Ernst & Young LLP (or, if specified in the Pricing Agreement
relating to such Designated Securities, one or more other independent
accountants reasonably acceptable to the Representatives) shall have furnished
to the Representatives a letter or letters, dated the date of delivery thereof,
in form and substance satisfactory to the Representatives, to the effect set
forth in Annex II hereto or as may otherwise be agreed in an additional schedule
to the Pricing Agreement with respect to such Designated Securities.
(h) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended and
supplemented with respect to the Designated Securities as of the date of the
Pricing Agreement with respect to such Designated Securities, there shall not
have been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
so amended and supplemented, the effect of which is in the Representatives'
judgment after consultation with the Company so material and adverse as to make
it impractical or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as so amended and supplemented.
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any downgrading in the
rating of any debt securities or preferred stock of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) of the rules and regulations of the Commission under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities or preferred stock of the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating).
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iii) an outbreak
or escalation of hostilities or other calamity or crisis having an adverse
effect on the financial markets of the United States, if the effect of any such
event specified in this clause (iii) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to the
Designated Securities.
(k) If required by the Pricing Agreement relating to the Designated
Securities, the Designated Securities at the applicable Time of Delivery shall
have been duly listed, subject to notice of issuance, on the New York Stock
Exchange or other organization.
(l) The Designated Trust, if applicable, and the Company shall have
furnished or caused to be furnished to the Representatives at each Time of
Delivery for the Designated
22
Securities certificates of officers of the Designated Trust, if applicable, and
the Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Designated Trust, if applicable, and the
Company herein at and as of such Time of Delivery, as to the performance by each
of the Designated Trust, if applicable, and the Company of all of its
obligations hereunder to be performed at or prior to such Time of Delivery, as
to the matters set forth in subsections (a) and (g) of this Section 7 and as to
such other matters as the Representatives may reasonably request.
(m) If required by the Pricing Agreement relating to the Designated
Securities, any additional conditions to the purchase by the Underwriters of
Optional Designated Securities at the Subsequent Time of Delivery.
8. (a) The Company and the Designated Trust, if applicable, will,
jointly and severally, indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement (or in any prior registration
statement to which the Prospectus, as a combined prospectus under Rule 429 of
the rules and regulations of the commission under the Act, relates) or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company and such Designated Trust shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representative expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Designated Trust, if applicable, against any losses, claims, damages or
liabilities to which the Company or such Designated Trust may become subject
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company or such Designated Trust, as the case may be, for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred.
23
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall without the
prior written consent of the indemnified party effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is a
party and indemnity has been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Designated Trust, if
applicable, on the one hand and the Underwriters on the other from the offering
of the Designated Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and such
Designated Trust on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and
such Designated Trust on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and such Designated Trust
bear to the total compensation received by such Underwriters in connection with
the offering of the Designated Securities, in each case as set forth in the
Prospectus as amended and supplemented with respect to the Designated
Securities. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and such Designated Trust on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and such Designated Trust and the Underwriters
24
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Securities purchased by it were resold by it as
contemplated in the Prospectus as amended and supplemented with respect to the
Designated Securities exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company and the Designated Trust, if
applicable, under this Section 8 shall be in addition to any liability which the
Company or such Designated Trust may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or such Designated Trust
and to each person, if any, who controls the Company or such Designated Trust
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or the Optional Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or such Optional Designated Securities, as the case may
be, then the Designated Trust, if applicable, and the Company shall be entitled
to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify such Designated Trust and the Company that
they have so arranged for the purchase of such Designated Securities, or such
Designated Trust and the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the Representatives or
such Designated Trust and the Company shall have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and such Designated Trust and the Company agree
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in these Standard Provisions shall
include any person substituted under this Section 9 with like
25
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters by the Representatives and
the Designated Trust, if applicable, and the Company as provided in subsection
(a) above, the aggregate number of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate number of the Firm
Designated Securities or Optional Designated Securities, as the case may be, to
be purchased at the respective Time of Delivery, then such Designated Trust and
the Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share (based
on the number of Firm Designated Securities or Optional Designated Securities,
as the case may be, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Designated Securities or Optional Designated Securities,
as the case may be, of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters by the Representatives and
the Designated Trust, if applicable, and the Company as provided in subsection
(a) above, the aggregate number of Firm Designated Securities or Optional
Designated Securities, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate number of the Firm Designated Securities or
Optional Designated Securities, as the case may be, to be purchased at the
respective Time of Delivery, as referred to in subsection (b) above, or if such
Designated Trust and the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Firm
Designated Securities or to exercise the Over-allotment Option relating to such
Optional Designated Securities, as the case may be, of a defaulting Underwriter
or Underwriters, then the Pricing Agreement relating to such Firm Designated
Securities or the Over-allotment Option relating to such Optional Designated
Securities, as the case may be, shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter, such Designated Trust or the
Company, except for the expenses to be borne by such Designated Trust, the
Company and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust, if applicable, the Company and the
several Underwriters, as set forth herein or made by or on behalf of them,
respectively, pursuant hereto, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or such
Designated Trust, the Company, or any officer or director or controlling person
of such Designated Trust or the Company, and shall survive delivery of and
payment for the Designated Securities.
26
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust, if applicable, nor
the Company shall then be under any liability to any Underwriter with respect to
the Firm Designated Securities or Optional Designated Securities covered by such
Pricing Agreement except as provided in Section 6 and Section 8 hereof; but, if
for any other reason, Designated Securities are not delivered by or on behalf of
such Designated Trust or the Company as provided herein, such Designated Trust
and the Company will reimburse the Underwriters through the Representatives for
all out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but such Designated Trust and
the Company shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Section 6 and
Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
shall act on behalf of each of such Underwriters, and the parties hereto shall
be entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives jointly or by
such of the Representatives, if any, as may be designated for such purpose in
the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust, if applicable, or the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of such Designated Trust or the Company, as the case may be, set forth
in the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its underwriters' questionnaire, or telex constituting such
questionnaire, which address will be supplied to such Designated Trust and the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. Each Pricing Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Designated Trust, if applicable, and the
Company and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of such Designated Trust or the Company and each person
who controls such Designated Trust, the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of any such
Pricing Agreement. No purchaser of any of the Designated Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
27
16. Each Pricing Agreement may be executed by any one or more of the
parties thereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
28
ANNEX I
-------
Form of Pricing Agreement
-------------------------
[Date]
To the Underwriters named in
Schedule I hereto (the "Underwriters")
c/o (Name(s) and Address(es) of Representative(s))
Ladies and Gentlemen:
The Bank of New York Company, Inc., a New York corporation (the "Company"),
and, if specified in Schedule II hereto, a statutory business trust formed under
the laws of the State of Delaware (the "Designated Trust"), propose, subject to
the terms and conditions stated herein and in the Underwriting Agreement
Standard Provisions (June 2001) (the "Standard Provisions"), to issue and sell
to the Underwriters the securities of the Company or the Designated Trust
specified in Schedule II hereto (the "[Firm]/1/ Designated Securities"). [The
Firm Designated Securities and any Optional Designated Securities the
Underwriters may elect to purchase are herein referred to as the "Designated
Securities".]
Each of the provisions of the Standard Provisions is incorporated herein by
reference in its entirety and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the
Standard Provisions so incorporated by reference shall be deemed to refer to you
(it being understood that the term "Representatives" may also refer to a single
firm acting as sole representative of the Underwriters if so specified herein or
to Underwriters who will act without any firm being designated as their
representative). Unless otherwise defined herein, terms defined in the Standard
Provisions are used herein as therein defined. The Representatives designated to
act on behalf of themselves and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Standard Provisions and the
address of the Representatives referred to in such Section 12 are set forth in
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
_______________
/1/ The bracketed provisions contained in this form of Pricing Agreement shall
be included if the Company or the Designated Trust, as the case may be,
grants to the Underwriters the right to purchase at their election an
additional number of Designated Securities specified herein.
Subject to the terms and conditions set forth herein and in the Standard
Provisions incorporated herein by reference, [(a)] the Company or the Designated
Trust, as the case may be, agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company or the Designated Trust, as the case may be, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the number of [Firm] Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto[, and (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Designated
Securities, as provided below, the Company or the Designated Trust, as the case
may be, agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company or
the Designated Trust, as the case may be, at the purchase price to the
Underwriters set forth in Schedule II hereto that portion of the number of
Optional Designated Securities as to which such election shall have been
exercised].
[The Company or the Designated Trust, as the case may be, hereby grants to
each of the Underwriters the right to purchase at their election up to the
number of Optional Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto on the terms referred to in the paragraph above
for the sole purpose of covering over-allotments in the sale of the Firm
Designated Securities. Any such election to purchase Optional Designated
Securities may be exercised by written notice from the Representatives to the
Company or the Designated Trust, as the case may be, given within a period of __
calendar days after the date of this Pricing Agreement, setting forth the
aggregate number of Optional Designated Securities to be purchased and the date
on which such Optional Designated Securities are to be delivered, as determined
by the Representatives, but in no event earlier than the First Time of Delivery
or, unless the Representatives and the Company or the Designated Trust, as the
case may be, otherwise agree in writing, no earlier than two or later than ten
business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign and
return to us ten counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company and, if applicable, the Designated Trust. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or will
be pursuant to the authority set forth in a form of agreement among
underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
I-2
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:______________________________
Name:
Title:
[NAME OF DESIGNATED TRUST, IF ANY
By: The Bank of New York Company, Inc.,
as Depositor
By:______________________________
Name:
Title:]
Accepted as of the date hereof:
[Name(s) of Representative(s)]
As Representative(s) of the Underwriters
named in Schedule I hereto
______________________________
By:___________________________
Name:
Title:
On behalf of each of the Underwriters
named in Schedule I hereto
I-3
SCHEDULE I
----------
(TO PRICING AGREEMENT)
----------------------
Number of [Firm] [Number of Maximum
Designated Securities to be Optional Designated
Underwriter Purchased Securities to be Purchased]
----------------------------- ----------------------------- ---------------------------
Total ___________ ___________
=========== ===========
SCHEDULE II
-----------
(TO PRICING AGREEMENT)
----------------------
Title of Designated Securities:
Aggregate Principal Amount or Number of Designated Securities:
[Firm] Designated Securities:
[Maximum Optional Designated Securities:]
Initial Public Offering Price of Designated Securities:
Purchase Price to the Underwriters of Designated Securities:
Compensation of Underwriters:
Form of Designated Securities:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian to be
made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC or such custodian.
Account for Payment of Purchase Price by Underwriters:
Registration Statement:
Initial Registration Statement File Number: 333-________
Rule 462(b) Registration Statement File Number, if any: 333-__________
Listing of Designated Securities:
Other Terms of Designated Securities (including any exchange or conversion
features thereof):
[First] Time of Delivery:
[Subsequent Time of Delivery:
The time and date specified in the notice to be delivered by the
Underwriters pursuant to Section 3 of the Standard Provisions.]
[Additional Closing Conditions to Purchase of Optional Designated Securities:]
Closing Location:
Name(s) and Address(es) of Representative(s):
If the Designated Securities are Depositary Shares:
Name of Depositary:
Deposit Agreement:
Depositary Shares Will Represent the Following Number of Shares of Preferred
Stock:
If the Designated Securities are Preferred Securities:
Designated Trust:
Trust Agreement:
S-2
Guarantee Agreement:
Expense Agreement:
Corresponding Junior Subordinated Debt Securities:
S-3
ANNEX II
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Accountants' Letter
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Pursuant to Section 7(g) of the Underwriting Agreement Standard Provisions
(June 2001), the Company's independent certified public accountants shall
furnish a letter or letters to the effect that:
i. They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder;
ii. In their opinion, the consolidated financial statements, and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the applicable published rules
and regulations thereunder; and they have made a review of the interim financial
information of the Company and its subsidiaries for the periods specified in
such letter in accordance with standards established by the American Institute
of Certified Public Accountants under SAS 71, Interim Financial Information;
iii. On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(1) the unaudited information with respect to the annual consolidated
results of operations and financial position for fiscal years which was included
or incorporated by reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year does not agree with the corresponding amount in the
audited consolidated financial statements for such fiscal years which was
included or incorporated by reference in the Company's Annual Reports on Form
10-K for the last three fiscal years;
(2) the unaudited information with respect to the annual consolidated
results of operations and financial position for such fiscal years which was
included or incorporated by reference in the Prospectus does not agree with the
corresponding amounts in the audited consolidated financial statements for such
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for the last three years;
(3) any material modifications should be made to the unaudited
consolidated financial statements included or incorporated by reference in the
Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus for them to be in conformity
with generally accepted accounting principles and such unaudited consolidated
financial statements do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it applies to Form 10-
Q and the applicable published rules and regulations thereunder;
(4) any unaudited financial data included in the Prospectus as at any
time, or for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated financial statements from
which such data are derived;
(5) the unaudited financial data included in the Prospectus do not agree
with the corresponding amounts in the unaudited financial statements which were
not included in the Prospectus but from which were derived such financial data;
(6) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated shareholders'
equity or allowance for loan losses, in each case as compared with amounts shown
in the latest consolidated statement of condition included or incorporated by
reference in the Prospectus except in each case for changes which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(7) for the period from the date of the latest complete consolidated
financial statements included or incorporated by reference in the Prospectus to
the specified date referred to in paragraph (6) above there were any decreases
in consolidated net interest income, net interest income after provision for
loan losses, or the net income of the Company, in each case as compared with the
comparable period of the preceding year, except in each case for decreases which
the Prospectus discloses have occurred or may occur or which are described in
such letter; and
iv. In addition to the examination referred to in their reports included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraph (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information specified by the Underwriters which are derived from the
general accounting records of the Company and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), in exhibits to
the Registration Statement specified by the Underwriters or in documents
incorporated by reference in the Prospectus specified by the Underwriters, and
have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found
them to be in agreement.
II-2
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
II-3
