EXHIBIT 1.1
The Bank of New York Company, Inc.
7.30% Senior Subordinated Notes due 2009
Underwriting Agreement
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November 30, 1999
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative and on behalf of the
several Underwriters named in Schedule I hereto
Ladies and Gentlemen:
The Bank of New York Company, Inc., a New York corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters"), for whom
you are acting as representative, an aggregate of $300,000,000 principal amount
of the Senior Subordinated Notes specified above (the "Securities").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (Nos. 333-70187, 000-00000-00,
000-00000-00, 000-00000-00 and 333-70187-04) in respect of, among other things,
the Securities has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendments
thereto, each in the form heretofore delivered or to be delivered to the
Underwriters, excluding exhibits thereto, but including all documents
incorporated by reference in the prospectus included in such registration
statement, have been declared effective by the Commission in such form; no other
document with respect to such registration statements or document incorporated
by reference therein has heretofore been filed or transmitted for filing with
the Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Securities
Act of 1933, as amended (the "Act"), being hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in such registration statement at the time such part of
such registration statement became effective, but excluding Form T-1, each as
amended at the time such part of such registration statement became effective,
being hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior to the
date of this Agreement, being 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
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 the
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 the 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 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 Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) 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 Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein 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 Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not 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;
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
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writing to the Company by any Underwriter expressly for use in the Prospectus as
amended or supplemented;
(c) The Registration Statement and the Prospectus 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 and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus or any
amendment or supplement thereto, 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; 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 by any Underwriter expressly for use therein or to that part of the
Registration Statement which shall constitute the Statement of Eligibility under
the Trust Indenture Act (Form T-1) of the Trustee;
(d) Since the respective dates as of which information is given 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, other 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 non-assessable;
and all of the issued shares of capital stock of the Bank have been duly and
validly authorized and issued, are fully paid and non-assessable (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) The Securities have been duly authorized by the Company and, when
issued and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture, dated as of October 1, 1993 (the "Indenture"), between the Company
and Chase Manhattan Trust Company, National Association, as Trustee (the
"Trustee"), under which they are to be issued, which will be substantially in
the form filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized by the Company
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and has been duly qualified under the Trust Indenture Act and the 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
equity principles; and the Securities and the Indenture will conform to the
descriptions thereof in the Prospectus;
(h) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Indenture and this Agreement
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 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, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
the Company or 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 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 Securities
or the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as have been 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 Securities
by the Underwriters; and
(i) 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, which might result in any material adverse change in the
financial condition, shareholders' equity or results of operations of the
Company and its subsidiaries considered as one enterprise.
2. Subject to the terms and conditions herein set forth, the Company
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, at
a purchase price of 99.233% of the principal amount thereof, the principal
amount of the Securities set forth opposite such Underwriter's named on Schedule
I hereto.
3. Upon the authorization by the Underwriters of the release of the
Securities, the Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Prospectus.
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4. The Securities will be delivered by or on behalf of the Company to or
on behalf of the Underwriters, against payment by you on behalf of the
Underwriters of the purchase price therefor by wire transfer payable in
immediately available funds. The time and date of such delivery and payment
shall be 10:00 a.m., New York time, on December 6, 1999, or at such other time
and date as you and the Company may agree upon in writing. Such time and date
for delivery of the Securities is herein called the "Time of Delivery."
Certificates representing the Securities, in book-entry only form represented by
one or more global securities deposited with The Depository Trust Company
("DTC"), New York, New York, or its designated custodian, registered in the name
of Cede & Co., as the nominee of DTC, will be made available for checking by you
at least 24 hours prior to the Time of Delivery.
5. The Company agrees with each of the Underwriters:
(a) To file the Prospectus as amended or supplemented with the Commission;
to make no further amendment or any supplement to the Registration Statement or
the Prospectus prior to the Time of Delivery that shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you 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 subsequent to
the date of the Prospectus and for so long as the delivery of a Prospectus is
required in connection with the offering or sale of the Securities; to advise
you, 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 Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Securities 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 stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you 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 the Securities,
provided that in connection therewith the Company
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shall not 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 in such
quantities as you may from time to time reasonably request, and, if the delivery
of a prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering or
sale of the Securities 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 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 the Trust Indenture Act, to notify you and upon your 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 you 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 the 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) 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 Registration Statement (as defined in Rule 158(c) 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, Rule 158
under the Act);
(e) During the period beginning from the date hereof and continuing to and
including the earlier of (i) the termination of trading restrictions on the
Securities, as notified to the Company by you, and (ii) the Time of Delivery,
not to offer, sell, contract to sell, or otherwise dispose of any debt
securities of the Company that mature more than one year after the Time of
Delivery and that are substantially similar to the Securities, without your
prior written consent; and
(f) To furnish to the holders of the 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
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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
Registration Statement), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail.
6. The Company covenants and agrees with each of the Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
documents 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 delivery of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
this Agreement, the Indenture, the Blue Sky Survey relating to the Securities
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the 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 the Blue Sky Survey relating to the Securities; (iv) any fees
charged by securities rating services for rating the 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 Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities; (viii) the cost of
qualifying the Securities with DTC; and (ix) all other costs and expenses
incident to the performance of its obligations hereunder 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 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 Securities by them and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
your discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder 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
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threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated the Time of
Delivery, with respect to such matters as you 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 X. Xxxxxxxx, Senior Counsel of the Bank of New York, shall have
furnished to you his written opinion or opinions, dated the Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) 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 supplemented or amended;
(ii) The 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 equity principles;
(iii) The Securities have been duly authorized, executed and delivered by
the Company, authenticated and issued in conformity with the terms of the
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 equity principles;
(iv) 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 Securities by the Company to
the Underwriters, in accordance with this Agreement, have been obtained or made
(except that such counsel need express no opinion with respect to state
securities laws);
(v) This Agreement has been duly authorized, executed and delivered by
the Company;
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(vi) The execution and delivery by the Company of the Indenture and this
Agreement do not, and the issuance of the Securities in accordance with the
Indenture, the sale by the Company of the Securities in accordance with this
Agreement and the performance by the Company of its obligations under the
Indenture, this Agreement and the Securities will not violate the Company's
Certificate of Incorporation 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
specified 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 (except 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 and laws that restrict transactions between United States persons and
citizens or residents of certain foreign countries, and insofar as performance
by the Company of its obligations under the Indenture, this Agreement and the
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);
(vii) The statements set forth under the captions "Description of
Senior Debt Securities and Senior Subordinated Debt Securities" and "Plan of
Distribution" in the Prospectus and under the captions "Description of the
Notes" and "Underwriting" in the Prospectus as amended or supplemented, insofar
as they relate to provisions of documents therein described, constitute accurate
summaries of the terms thereof in all material respects; and
(viii) Each part of the Registration Statement, when such part became
effective, and the Prospectus, 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 Securities, to the
requirements of the Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder; further, nothing that came to his
attention in the course of his review (as described in such opinion) has caused
him to believe that, insofar as relevant to the offering of the 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 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 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
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such opinion) has caused such counsel to believe that the Prospectus, 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; and such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company or the Bank
that would be required to be disclosed in the Prospectus and is not so
disclosed, and does not know of any documents that are required to be filed as
exhibits to the Registration Statement and are not so filed or any documents
that are required to be summarized in the Prospectus and are not so summarized.
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 except as set forth in paragraph (vii)
above and that he does not express any opinion or belief as to the financial
statements or other financial data contained in the Registration Statement or
the Prospectus or as to the statements of the eligibility of the Trustee;
(d) At the Time of Delivery, Ernst & Young LLP shall have furnished to you
a letter or letters, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto;
(e) Since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus 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, the effect of which is in
your judgment after consultation with the Company so material and adverse as to
make it impractical or inadvisable to proceed with the public offering of the
Securities on the terms and in the manner contemplated in the Prospectus;
(f) On or after the date hereof there shall not have occurred any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating);
(g) On or after the date hereof 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
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activities in New York declared by either Federal or New York State authorities;
or (iii) the outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in your judgment makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated by the
Prospectus; and
(h) The Company shall have furnished or caused to be furnished to you at
the Time of Delivery certificates of officers of the Company satisfactory to you
as to the accuracy of the representations and warranties of the Company herein
at and as of the Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to the Time of
Delivery, as to the matters set forth in subsections (a) and (e) of this Section
7 and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon 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, 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 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 such Underwriter
through you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon 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
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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 such Underwriter through you expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(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 that 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 on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by the
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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 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 on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. 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 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
the Underwriters agrees 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 that 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 Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company (including any
person who, with such
13
person's consent, is named in the Registration Statement as about to become a
director of the Company) and to each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities that it has agreed to purchase hereunder, you may in your
discretion arrange for itself or another party or other parties to purchase such
Securities on the terms contained herein. If within 36 hours after such default
by any Underwriter you do not arrange for the purchase of such Securities, then
the Company shall be entitled to a further period of 36 hours within which to
procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
period, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery 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 the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus that
in your opinion may thereby be made necessary. The term "Underwriters" as used
in this Agreement shall include any person substituted under this Section 9 with
like effect as if such person had originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Securities to be purchased at the Time of
Delivery, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Securities that such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based upon the principal amount of
Securities that such Underwriter agreed to purchase) of the Securities 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
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities that remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Securities to be purchased at the Time of Delivery, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Securities of a defaulting
14
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by 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 Company and the several Underwriters, as set forth
in this Agreement or made by them, respectively, pursuant to this Agreement,
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 the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Securities except as provided in Sections 6 and 8 hereof; but, if
for any other reason Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through you 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 the Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Securities except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
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 you.
All statements, requests, notices and agreements hereunder shall be in writing,
and shall be delivered or sent by mail, telex or facsimile transmission if to
the Underwriters to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxx and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Secretary. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall
15
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the 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 this 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. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto 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.
16
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 shall
constitute a binding agreement between each of the Underwriters and the Company.
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 your part as to
the authority of the signers thereof.
Very truly yours,
The Bank of New York Company, Inc.
/s/ Xxxxxx X. Xxxxxx
By: _______________________________
Name: Xxxxxx X. Xxxxxx
Title: Comptroller
Accepted as of the date hereof:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
/s/ Xxxxxxx X. Xxxxx
By:_____________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
As Representative and on behalf of the
several Underwriters named in Schedule I hereto
17
SCHEDULE I
----------
Principal
Amount of
Securities
Underwriter to
be
--
Purchased
---------
Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx $ 27,000,000
Incorporated
BNY Capital Markets, Inc. 3,000,000
-------------
Total $300,000,000
============
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, Ernst & Young LLP
shall provide a comfort letter 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 or the Exchange Act, as applicable, and the 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;
(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 then to believe that:
(A) the unaudited information with respect to the annual consolidated
results of operations and financial position for fiscal years that 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 that was
included or incorporated by reference in the Company's Annual Reports on Form
10-K for the last three fiscal years;
(B) the unaudited information with respect to the annual consolidated
results of operations and financial position for such fiscal years that 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 that were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for the last three years;
(C) 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 do not comply
as to form in all material respects with the applicable accounting requirements
of the Exchange Act and published rules and regulations thereunder or are not
fairly presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
consolidated financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) 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;
(E) the unaudited financial data included in the Prospectus do not
agree with the corresponding amounts in the unaudited financial statements that
were not included in the Prospectus but from which were derived such financial
data;
(F) 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 that 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 that the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(G) 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 clause (F) above, there were any decreases in
consolidated net interest income, net interest income after provision for loan
losses, or the total or fully diluted per share amounts of net income of the
Company, in each case as compared with the comparable period of the preceding
year, except in each case for decreases that the Prospectus discloses have
occurred or may occur or that are described in such letter;
(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
paragraph (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 that 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.
