Exhibit 1.1
Pricing Agreement
April 22, 2003
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several Underwriters named in
Schedule I hereto (the "Underwriters")
Ladies and Gentlemen:
The Bank of New York Company, Inc., a New York corporation (the "Company"),
and a statutory trust formed under the laws of the State of Delaware specified
in Schedule II hereto (the "Designated Trust") propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement Standard Provisions
(August 2002) (the "Standard Provisions"), to issue and sell to the Underwriters
the preferred securities of the Designated Trust (the "Designated Securities").
Except as set forth in the next paragraph, 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. 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.
For purposes of this Pricing Agreement, (i) Section 7(j) of the Standard
Provisions is amended and restated as follows: "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 a material disruption in commercial banking or
securities settlement or clearance services in the United States; or (iii) an
outbreak or escalation of hostilities or the declaration by the
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United States of a national emergency or war or other calamity or crisis or
change in financial, political or economic conditions in the United States or
elsewhere 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," (ii) the first paragraph of
Section 7(c) of the Standard Provisions is amended and restated as follows:
"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 Designated Securities are Preferred
Securities, Xxxxxxxx & Xxxxxxxx LLP, 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 paragraphs (2)
through (4) below, and paragraphs 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:", and (iii) all
references to "Xxxxxxxx & Xxxxxxxx" in the Standard Provisions shall be changed
to "Xxxxxxxx & Xxxxxxxx LLP."
A supplement to the Prospectus relating to the Designated Securities, in
the form heretofore delivered to you, is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Standard
Provisions incorporated herein by reference, the Designated Trust agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Designated Trust, at the time
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the number of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto. The Company agrees to pay the underwriting
compensation set forth in Schedule II hereto to you, for the accounts of the
several Underwriters, at the time and place set forth in such Schedule II.
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If the foregoing is in accordance with your understanding, please sign and
return to us five 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 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.
Very truly yours,
The Bank of New York Company, Inc.
By: /s/ Xxxxx Xxx Xxxx
------------------------------------------
Name: Xxxxx Xxx Xxxx
Title: Senior Executive Vice President and
Chief Financial Officer
BNY Capital V
By: The Bank of New York Company, Inc.,
as Depositor
By: /s/ Xxxxx Xxx Xxxx
------------------------------------------
Name: Xxxxx Xxx Xxxx
Title: Senior Executive Vice President and
Chief Financial Officer
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Accepted as of the date hereof:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the Underwriters
named in Schedule I hereto
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Duly Authorized Attorney
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SCHEDULE I
(TO PRICING AGREEMENT)
Number of
Designated
Securities
to be
Underwriter Purchased
------------------------------------------------------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.................................................... 2,169,650
Xxxxxx Xxxxxxx & Co. Incorporated.................................. 2,169,650
Citigroup Global Markets Inc....................................... 2,169,650
UBS Warburg LLC.................................................... 2,169,650
Banc of America Securities LLC..................................... 583,800
BNY Capital Markets, Inc........................................... 583,800
Xxxxxx Brothers Inc................................................ 583,800
ABN AMRO Incorporated.............................................. 140,000
BNP Paribas Securities Corp........................................ 140,000
Bear, Xxxxxxx & Co. Inc............................................ 140,000
CIBC World Markets Corp............................................ 140,000
Credit Suisse First Boston LLC..................................... 140,000
X.X. Xxxxxxx & Sons, Inc........................................... 140,000
Fidelity Capital Markets, a division of National
Financial Services LLC.......................................... 140,000
Xxx-Xxxx, Xxxxxx Inc............................................... 140,000
Xxxxxxx, Sachs & Co................................................ 140,000
HSBC Securities (USA) Inc.......................................... 140,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc................................... 140,000
ING Financial Markets LLC.......................................... 140,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc....................................... 140,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated............................... 140,000
Xxxxxx Xxxxxx & Company, Inc....................................... 140,000
Pershing LLC....................................................... 140,000
Prudential Securities Incorporated................................. 140,000
Quick & Xxxxxx, Inc................................................ 140,000
RBC Xxxx Xxxxxxxx Inc.............................................. 140,000
Xxxxxxx Xxxxx & Associates, Inc.................................... 140,000
Xxxxxxx Xxxxxx & Co., Inc.......................................... 140,000
TD Waterhouse Investor Services, Inc............................... 140,000
U.S. Bancorp Xxxxx Xxxxxxx Inc..................................... 140,000
Advest, Inc........................................................ 25,000
Xxxxxx X. Xxxxx & Co. Incorporated................................. 25,000
Xxxxxxxxxx & Co. Inc............................................... 25,000
Friedman, Billings, Xxxxxx & Co., Inc.............................. 25,000
H&R Block Financial Advisors, Inc.................................. 25,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC........................................ 25,000
McDonald Investments Inc., a KeyCorp Company....................... 25,000
Mesirow Financial, Inc............................................. 25,000
Xxxxxx Xxxxxx NBF Securities Inc................................... 25,000
Xxxxxx Xxxxxxx & Co., Inc.......................................... 25,000
Southwest Securities, Inc.......................................... 25,000
Xxxxxx, Xxxxxxxx & Company, Incorporated........................... 25,000
SunTrust Capital Markets, Inc...................................... 25,000
Xxxxx Fargo Investment Services, LLC............................... 25,000
---------
Number of
Designated
Securities
to be
Underwriter Purchased
------------------------------------------------------------------- ----------
14,000,000
==========
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SCHEDULE II
(TO PRICING AGREEMENT)
Designated Trust:
BNY Capital V
Title of Designated Securities:
5.95% Trust Preferred Securities, Series F (Liquidation Amount $25 per Trust
Preferred Security)
Aggregate Liquidation Amount:
$350,000,000
Number of Designated Securities:
14,000,000
Initial Public Offering Price of Designated Securities:
100% of the liquidation amount of the Designated Securities
Purchase Price to the Underwriters of Designated Securities:
100% of the liquidation amount of the Designated Securities
Compensation of Underwriters:
$0.7875 per Designated Security ($11,025,000 in the aggregate)
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,
registered in the name of Cede & Co., as the nominee of DTC, 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.
Registration Statement:
Initial Registration Statement File Numbers: 333-103003, 000-000000-00,
000-000000-00, 000-000000-00 and 000-000000-00
Listing of Designated Securities:
The Company and the Designated Trust have applied to list the Designated
Securities on the New York Stock Exchange, and, if the Company elects to
terminate the Designated Trust
and to distribute the Subordinated Debentures to the holders of the
Designated Securities in liquidation of the Designated Trust, the Company
and the Designated Trust shall each use its best efforts to list the
Subordinated Debentures on the New York Stock Exchange, prior to such
distribution
Trust Agreement:
Amended and Restated Trust Agreement, dated as of April 30, 2003, among the
Company, as depositor, the Trustees named therein and the Securityholders
Guarantee Agreement:
Guarantee Agreement, dated as of April 30, 2003, between the Company, as
guarantor, and the Guarantee Trustee named therein
Corresponding Junior Subordinated Debt Securities:
5.95% Junior Subordinated Deferrable Interest Debentures, Series F (the
"Subordinated Debentures")
Expense Agreement:
Agreement as to Expenses and Liabilities, dated as of April 30, 2003, between
the Company and the Designated Trust
Maturity of the Subordinated Debentures:
May 1, 2033
Annual Dividend Rate for Designated Securities and Annual Interest Rate for the
Subordinated Debentures:
5.95%
Distribution Dates for Designated Securities and Interest Payment Dates for the
Subordinated Debentures:
February 1, May 1, August 1 and November 1 of each year, commencing on
August 1, 2003
Redemption Provisions:
The Designated Securities are subject to mandatory redemption in whole upon
repayment of the Subordinated Debentures at their maturity or in whole or
in part upon the redemption of the Subordinated Debentures as described
below at a redemption price equal to 100% of the liquidation amount of the
Designated Securities plus accumulated and unpaid distributions thereon to
the date fixed for redemption
The Subordinated Debentures are not redeemable prior to April 30, 2008
except, at the option of the Company, upon the occurrence of a Tax Event or
a Capital Treatment Event (each as defined in the Prospectus)
Special Event Redemption: Within 90 days of the occurrence of a Tax Event
or a Capital Treatment Event, the Subordinated Debentures are redeemable
prior to maturity (in whole but not in part) at a redemption price equal to
100% of the principal amount of the Subordinated Debentures plus accrued
and unpaid interest thereon to the date fixed for redemption
Optional Redemption: On or after April 30, 2008, the Subordinated
Debentures are redeemable prior to maturity (in whole or in part) at a
redemption price equal to 100% of the principal amount of the Subordinated
Debentures plus accrued and unpaid interest thereon to the date fixed for
redemption
Time of Delivery:
10:00 a.m., New York City time, April 30, 2003
Closing Location:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Account for Payment of Purchase Price by Underwriters:
BNY Capital V
Acct. No. 0000131784 at
The Bank of New York
ABA No. 000000000
Name and Address of Representatives:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
