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WLRK Draft 2/11/97
Exhibit 1.3
[Common Stock]
STAR BANC CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Star Banc Corporation, an Ohio corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), ________ shares (the "Initial Shares") of the Company's
common stock (the "Common Stock"). Such Initial Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are listed in
Schedule II opposite the name of each Under writer. The Company also grants to
the Underwriters, severally and not jointly, the option described in Section
2(c) to purchase up to _____ additional shares (the "Option Shares"; together
with the Initial Shares, the "Shares") of Common Stock to cover over-allotments.
The Common Stock is more fully described in the Final Prospectus, referred to
below. If the firm or firms listed in Schedule II hereto include only the firm
or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company rep resents and
warrants to, and agrees with, each Underwriter, as of the date hereof and as of
the date of the Pricing Agreement (such latter date being hereinafter referred
to as the "Representation Date") that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the
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file number of which is set forth in Schedule I hereto), which has
become effective, for the registration under the Act of the Shares.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424 or Rule 434
under the Act a supplement to the form of prospectus included in such
registration statement relating to the Shares and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called
the "Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424 hereinafter is called the "Preliminary Final
Prospectus." Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934 (the "Exchange
Act") on or before the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, and the Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 or Rule 434 under the Act, when, prior to
the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with
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the Commission and at the Closing Date (as hereinafter defined), (i)
the Registration Statement as amended as of any such time, and the
Final Prospectus, as amended or supplemented as of any such time, will
comply in all material respects with the applicable requirements of the
Act, and the Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to the information contained
in or omitted from the Registration Statement or the Final Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
Statement and the Final Prospectus.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective number of
Initial Shares set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Initial Shares
pursuant to delayed delivery arrangements, the respective amounts of Initial
Shares to be purchased by the Underwriters shall be set forth in Schedule II
hereto, less the respective amounts of Contract Securities determined as
provided below. Shares to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Shares to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Initial Shares from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve. The Underwriters will endeavor to make
such arrangements and, as compensation therefor, the
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Company will pay to the Representatives, for the account of the Underwriters,
on the Closing Date, the purchase price set forth on Schedule I hereto, of the
Initial Shares for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the Company may
otherwise agree, each such Delayed Delivery Contract must be for not less than
the minimum amount of Initial Shares set forth in Schedule I hereto and the
aggregate amount of Contract Securities may not exceed the maximum aggregate
amount set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The amount of Initial Shares to be purchased by each Underwriter as
set forth in Schedule II hereto shall be reduced by an amount which shall bear
the same proportion to the total amount of Contract Securities as the amount of
Initial Shares set forth opposite the name of such Underwriter bears to the
aggregate amount set forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such proportion and so
advise the Company in writing; provided, however, that the total amount of
Initial Shares to be purchased by all Underwriters shall be the aggregate amount
set forth in Schedule II hereto, less the aggregate amount of Contract
Securities.
(b) The initial public offering price and the purchase price
of the Initial Shares shall be set forth in a separate written instrument (the
"Pricing Agreement") signed by the Representatives and the Company, the form of
which is attached hereto as Schedule IV. From and after the execution and
delivery of the Pricing Agreement, this Agreement shall be deemed to include the
Pricing Agreement. The purchase price per share to be paid by the several
Underwriters for the Initial Shares shall be an amount equal to the initial
public offering price, less an amount per share to be determined by agreement
among the Representatives and the Company.
(c) In addition, on the basis of the representations and
warranties contained herein, and subject to the terms and conditions set forth
herein, the Company grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional _______ Option Shares at the same price
per share determined as provided above for the Initial Shares. The option hereby
granted will expire 30 days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once), only for the purpose of
covering
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over-allotments upon notice by the Representatives to the Company
setting forth the number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment and delivery
thereof. Such time and date of Delivery (the "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any event prior to
the Closing Date (as defined below). If the option is exercised as to all or any
portion of the Option Shares, the Option Shares as to which the option is
exercised shall be purchased by the Underwriters severally and not jointly, in
proportion to, as nearly as practicable, their respective Initial Shares
underwriting obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the
Initial Shares shall be made on the date and at the time specified in the
Pricing Agreement, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Initial Shares being herein called the
"Closing Date"). Delivery of the Initial Shares shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Initial Shares shall be in the form set forth in
Schedule I hereto, and such certificates shall be deposited with the Paying
Agent, Security Registrar and Transfer Agent as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for
DTC.
In addition, in the event that any or all of the Option Shares
are purchased by the Underwriters, delivery and payment for the Option Shares
shall be made at the office specified for delivery of the Initial Shares in the
Pricing Agreement, or at such other place as the Company and the Representatives
shall determine, on the Date of Delivery as specified in the notice from the
Representatives to the Company. Delivery of the Option Shares shall be made to
the Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I hereto. Certificates for the
Option Shares shall be in the form set forth in Schedule I hereto, and such
certificates shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Date of Delivery.
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4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the Shares,
the Company will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed with the Commission
pursuant to Rule 424 or Rule 434 via the Electronic Data Gathering,
Analysis and Retrieval System. The Company will advise the
Representatives promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when
any amendment to the Registration Statement relating to the Shares
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance.
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(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 60 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158
of the regulations under the Act) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of
the Registration Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing all documents relating to the
offering.
(e) The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Shares and will arrange for the determination of the legality of
the Shares for purchase by institutional investors; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process of
any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any securities covered by the
Registration Statement or by any other registration statement filed
under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any
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document incorporated by reference therein) and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or mailed
for filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the Representatives
the opinion of [Wachtell, Lipton, Xxxxx & Xxxx], counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i), (iv)
and (vi) through (xii) below, and the opinion of [Xxxxxx X. Xxxxx],
General Counsel to the Company, dated the Closing Date, to the effect
of paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Ohio, has the corporate power and authority to own
its properties and conduct its business as described in the
Final Prospectus, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; Star Bank, N.A. (or the successors to such entity)
(the "Subsidiary") is a national banking association formed
under the laws of the United States and authorized thereunder
to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Subsidiary is required to be qualified or licensed to do
business as a foreign corporation in any jurisdiction;
(iii) all the outstanding shares of capital stock
of the Subsidiary have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C.
(Section Xxxx) 55, as amended) nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries (except directors'
qualifying shares) are owned, directly or indirectly, by the
Company free and clear of any perfected security interest and,
to the knowledge of such counsel,
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after due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) the Shares conform in all material respects
to the description thereof contained in the Final Prospectus;
(v) if the Shares are to be listed on the New York
Stock Exchange, authorization therefor has been given, subject
to official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect
to the Initial Shares with the New York Stock Exchange and
such counsel has no reason to believe that the Initial Shares
will not be authorized for listing, subject to official notice
of issuance and evidence of satisfactory distribution;
(vi) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of such counsel
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; the Registration
Statement, the Final Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and
other financial and statistical information contained therein
or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and such
counsel has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact
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required to be stated therein or necessary to make the
statements therein not misleading or that the Final
Prospectus, as amended or supplemented, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(viii) this Agreement, the Pricing Agreement and
any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and each constitutes a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, except such as have been
obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Shares by the Underwriters
and such other approvals (specified in such opinion) as have
been obtained;
(x) neither the issue and sale of the Shares, nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the articles of
incorporation or by-laws of the Company or, to the best
knowledge of such counsel, the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound, or
any order or regulation known to such counsel to be
applicable to the Company or any of its
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subsidiaries of any court, regulatory body, admnistrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its affiliates;
(xi) to the best knowledge and information of such
counsel, each holder of securities of the Company having
rights to the registration of such securities under the
Registration Statement has waived such rights or such rights
have expired by reason of lapse of time following notification
of the Company's intention to file the Registration Statement;
and
(xii) to Initial Shares, any Option Shares as to
which the option granted in Section 2 has been exercised and
the Date of Delivery determined by the Representatives to be
the same as the Closing Date, have been duly authorized and,
when paid for as contemplated herein, will be duly issued,
fully paid and nonassessable.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of Ohio or the United States, to the
extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the
Company and its subsidiaries and public officials.
(c) The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale
of the Initial Shares, the Indenture, any Delayed Delivery Contracts,
the Registration Statement, the Final Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and
Chief Executive Officer or a Senior Vice President and the principal
financial or accounting officer of the Company, dated the Closing Date,
to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final
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Prospectus and this Agreement and that to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to Item 10 of
the Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by them
and included or incorporated by reference in the Registration
Statement and Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange Act and
the regulations thereunder.
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(iii) On the basis of procedures (but not an audit
in accordance with generally accepted auditing standards)
consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through
a specified date not more than five business days
prior to the date of delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries included or
incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period from
the date of the latest balance sheet included or
incorporated by reference in the Registration
Statement and Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form in
all material respects with the applicable accounting
requirements of the Exchange Act and the published
rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated interim
financial statements, included or
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incorporated by reference in the Registration
Statement and Prospectus, for them to be in
conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases
in shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet
included or incorporated by reference in the
Registration Statement and the Prospectus or (ii) for
the period from the date of the latest available
financial data to a specified date not more than five
business days prior to the delivery of such letter,
there was any change in the capital stock or the
long-term debt (other than scheduled repayments of
such debt) or any decreases in shareholders' equity
of the Company and the subsidiaries on a consolidated
basis, except in all instances for changes or
decreases which the Registration Statement and
Prospectus discloses have occurred or may occur, or
Xxxxxx Xxxxxxxx shall state any specific changes or
decreases.
(iv) The letter shall also state that Xxxxxx
Xxxxxxxx LLP has carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and Prospectus and which are specified by the
Representatives and agreed to by Xxxxxx Xxxxxxxx LLP, and has
found such amounts, percentages and financial information to
be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified
in such letter.
In addition, at the time this Agreement is executed, Xxxxxx
Xxxxxxxx LLP shall have furnished to the Representatives a letter or
letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
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(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (e) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or
affecting the earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of the Representatives, so material
and adverse as to make it impractical or inadvisable to proceed with
the offering or the delivery of the Shares as contemplated by the
Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters here under may be
canceled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
6. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including capital duties,
stamp duties and stock transfer taxes, if any, payable upon issuance of any of
the Shares, the sale of the Shares to the Underwriters and the fees and expenses
of the transfer agent for the Shares, (iv) the fees and disbursements of the
Company's counsel and accountants, (v) the qualification of the Shares under
state securities laws in accordance with the provisions of Section 4(e),
including filing fees and the
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reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies of the Blue Sky
Survey, and (viii) the fee of the National Association of Securities Dealers,
Inc. and, if applicable, the New York Stock Exchange.
If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Shares.
7. Conditions to Purchase of Option Shares. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase all
or any portion of the Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for the Option
Shares that they shall have respectively agreed to purchase hereunder are
subject to the accuracy of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and any required filing of the Final Prospectus pursuant
to Rule 424(b) or Rule 434 under the Act shall have been made within
the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the Option
Shares:
(i) the favorable opinion of [Wachtell, Lipton,
Xxxxx & Xxxx], counsel for the Company, in form and
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substance satisfactory to counsel for the Underwriters, to the
same effect as the opinion required by Section 5(b);
(ii) the favorable opinion of [Xxxxxx X. Xxxxx],
General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the same
effect as the opinion required by Section 5(b);
(iii) the favorable opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, to the same effect as
the opinion required by Section 5(c);
(iv) a certificate, of the Chairman of the Board
and Chief Executive Officer or Senior Vice President of the
Company and of the principal financial or accounting officer
of the Company with respect to the matters set forth in
Section 5(d);
(v) a letter from Xxxxxx Xxxxxxxx, in form and
substance satisfactory to the Underwriters, substantially the
same in scope and substance as the letter furnished to the
Underwriters pursuant to Section 5(e) except that the
"specified date" in the letter furnished pursuant to this
Section 7(b)(iv) shall be a date not more than five days prior
to the Date of Delivery;
(vi) Subsequent to the respective dates as of
which information is given in the Registration Statement and
the Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to in
paragraph (b)(iv) of this Section 7 or (ii) any change, or any
development involving a prospective change, in or affecting
the earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the
delivery of the Shares as contemplated by the Registration
Statement and the Final Prospectus; and
(vii) such other information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and
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as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and their counsel, this Agreement and all obligations of the Underwriters here
under may be canceled at, or at any time prior to, the Date of Delivery by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Shares as originally filed or in any amendment thereof, or
in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon 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 agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will 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 any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Basic Prospectus or any Preliminary
Final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Shares which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such Shares
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Basic
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Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page and under
the heading "Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such
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action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the indemnified
parties under subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party; and except that if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on the grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company and one or more of the Underwriters may be subject in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such discount and
the purchase price of the Securities specified in Schedule I hereto and the
Company is responsible for the balance; provided, however, that (y) in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount applicable to the Securities
purchased by such Underwriter hereunder and (z) 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. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the
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Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Shares agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Shares set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Shares, and
if such nondefaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Shares, if prior to such
time (i) trading in securities
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generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal, or Ohio State authorities
or (iii) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Shares.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Shares. The provisions of
Section 7 and 8 hereof and this Section 11 shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto, with a copy to: Xxxxxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attn: [ ];
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at [address].
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the [State of New York],
without giving effect to principles of conflict of laws.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
STAR BANC CORPORATION
By:_______________________
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I
hereto.
By: [Name of Representatives]
By:____________________________
For themselves and the other several Underwriters,
if any, named in Schedule II to the foregoing
Agreement.
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SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 33-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts:
________________________
Additional items to be covered by the letter from Xxxxxx Xxxxxxxx delivered
pursuant to Section 5(e) at the time this Agreement is executed:
________________________
25
SCHEDULE II
Principal Amount of
Initial Shares to
Underwriters be Purchased
26
SCHEDULE III
Delayed Delivery Contract
________, 19__
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Star Banc
Corporation (the "Company"), and the Company agrees to sell to the undersigned,
on ________, 19__ (the "Delivery Date"), ______ shares of the Company's Common
Stock (the "Shares") offered by the Company's Final Prospectus dated ______,
19__, receipt of a copy of which is hereby acknowledged, at a purchase price of
___% of the principal amount thereof, plus accrued interest, if any, thereon
from _________, 19__, to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Shares to be purchased by the undersigned
shall be made on or before 11:00 A.M. on the Delivery Date to or upon the order
of the Company in New York Clearing House (next day) funds, at your office or at
such other place as shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Shares in definitive fully registered form
and in such authorized denominations and registered in such names as the
undersigned may request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the Delivery Date. If no
request is received, the Shares will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate amount of Shares
to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Shares on the Delivery Date, and the obligation of the Company to
sell and deliver Shares on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Shares to be made by the undersigned, which purchase
the undersigned represents is not prohibited on the date hereof, shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is
27
subject, and (2) the Company, on or before the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such amount of the Shares as is to be
sold to them pursuant to the Underwriting Agreement referred to in the Final
Prospectus mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
The obligation of the undersigned to take delivery of and make payment for the
Shares, and the obligation of the Company to cause the Shares to be sold and
delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Shares pursuant to other contracts similar
to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
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This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
Very truly yours,
___________________________________
(Name of Purchaser)
By:________________________________
(Signature and Title of Officer)
___________________________________
(Address)
Accepted:
STAR BANC CORPORATION
By:______________________
(Authorized Signature)
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SCHEDULE IV
_________ Shares
STAR BANC CORPORATION
(an Ohio corporation)
Common Stock
PRICING AGREEMENT
_____________ __, 199_
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Purchase Agreement, dated
_____________ __, 199_ (the "Underwriting Agreement"), relating to the purchase
by the several Underwriters named in Schedule I thereto, for whom you are acting
as representatives (the "Representatives"), of the above shares of Common Stock
(the "Initial Shares"), of Star Banc Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of
the Purchase Agreement) shall be at 9:30 A.M., New York City time, on __________
__, 199_ at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000-0000.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be
paid by the several Underwriters shall be $__.__, being an amount equal to the
initial public offering price set forth above less $_.__ per share.
30
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
STAR BANC CORPORATION
By:_________________________
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By: ______________________________
For themselves and as Representatives
of the other Underwriters named in
Schedule A hereto.
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SCHEDULE A
