Exhibit 1.2
EXECUTION VERSION
State Street Corporation
6.75% SPACES
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Underwriting Agreement
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January 14, 2003
Xxxxxxx, Xxxxx & Co.,
Deutsche Bank Securities Inc.,
As representatives (the "Representatives"
or "you") of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
State Street Corporation, a Massachusetts corporation (the "Company"), and
the several Underwriters named in Schedule I hereto (the "Underwriters")
propose, subject to the terms and conditions stated herein, to enter into the
Contracts (as defined below) underlying an aggregate of 1,500,000 units (the
"Firm Units") and, at the election of the Underwriters, additional Contracts
underlying an aggregate of up to 225,000 additional units (the "Optional Units")
of the Company's 6.75% SPACES ("SPACES") (the Firm Units and the Optional Units
that the Underwriters elect to purchase pursuant to Section 2 hereof being
collectively called the "Units").
In accordance with the terms of the Purchase Contract Agreement, to be
dated as of January 21, 2003 (the "Purchase Contract Agreement") between the
Company and Bank One Trust Company, N.A., as purchase contract agent (the
"Purchase Contract Agent"), the Collateral (as defined in the Pledge Agreement
to be dated as of January 21, 2003 (the "Pledge Agreement") among the Company,
Bank One Trust Company, N.A., as Collateral Agent, Custodial Agent and
Securities Intermediary (the "Collateral Agent") and the Purchase Contract
Agent) will be pledged by the Purchase Contract Agent to secure the holders'
obligation to purchase or sell Common Stock ("Stock"), par value $1.00 per
share, of the Company pursuant to the Contracts. The Purchase Contract
Agreement, the Pledge Agreement and this Agreement, collectively, are referred
to as the "Transaction Agreements".
Each Unit will have a stated amount of $200 and will initially be comprised
of (a) a PACES and (b) a variable-share repurchase contract (a "Variable-Share
Repurchase Contract") under which the holder will sell to the Company on
February 15, 2006, a number of shares of Stock equal to the Variable-Share
Settlement Rate (as defined in the Purchase Contract Agreement). A PACES will be
comprised of (a) a fixed-share purchase contract (a "Fixed-Share Purchase
Contract", and together with a Variable-Share Repurchase Contract, the
"Contracts") under which the holder will purchase from the Company on November
15, 2005, 5.0505 shares of Stock for $200 and (b) ownership
interests in a U.S. Treasury strip and in a portfolio of U.S.
Treasury strips. The shares of Stock to be issued under the Fixed-Share Purchase
Contracts, collectively, are referred to as the "Issuable Common Stock".
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-98267), as
amended by the Post-Effective Amendment No. 1 thereto (the "Initial
Registration Statement") in respect of the Units has been filed with the
Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to you, and, excluding
exhibits thereto but including all documents incorporated by reference in
the prospectus contained therein, to you for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than (i) a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, and (ii) prospectus supplements filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to you, no other
document with respect to the Initial Registration Statement 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 the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) or 424(b)(5) of the rules and regulations of the Commission
under the Act is hereinafter called a "Preliminary Prospectus"; the various
parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time such
part of the Initial Registration Statement became effective or such part of
the Rule 462(b) Registration Statement, if any, became effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus supplement relating to the Units, in the form first filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under
the Act, together with the prospectus included in the Initial Registration
Statement, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or 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 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 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;
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(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 writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use in the
Prospectus;
(c) The Registration Statement and the Prospectus, in each case,
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to the
requirements of the Act 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 and 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 an Underwriter through Xxxxxxx, Sachs & Co.
expressly for use in the Prospectus;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt (other than (i) issuances of capital stock upon exercise of options
and stock appreciation rights issued under equity incentive or stock option
plans reported on the Company's Proxy Statement filed with the Commission
on March 11, 2002, (ii) upon earn-outs of performance shares, (iii) upon
repayment of long-term debt in accordance with its terms, (iv) upon
conversions of convertible securities, (v) issuances of capital stock under
deferred stock compensation plans, restricted stock programs and saving-
related stock purchase plans, in the case of (i) through (v) above, which
were outstanding on the date of the latest balance sheet included or
incorporated by reference into the Prospectus, and (vi) repurchases of the
Stock, in accordance with the Company's stock repurchase program authorized
by its Board of Directors) of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
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Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus;
(e) Each of the Company and State Street Bank and Trust Company (the
"Bank") has been duly incorporated and is validly existing as a corporation
or trust company in good standing under the laws of the jurisdiction of its
incorporation, with corporate and chartered trust power and authority to
own its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation or trust company for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable and conform to the description of the Stock contained in the
Prospectus; and all of the issued shares of capital stock of the Bank have
been duly authorized and validly issued, are fully paid and non-assessable
and (except for directors' qualifying shares and except as set forth in the
Prospectus) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims;
(g) The Units have been duly authorized and, when duly executed,
authenticated and delivered against payment therefor as provided herein and
in the Purchase Contract Agreement, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and will be
in the form contemplated by, and will be entitled to the benefits of, the
Purchase Contract Agreement; the Units will conform to the description
thereof contained in the Prospectus; the issuance of the Units is not
subject to preemptive or other similar rights; the Issuable Common Stock
has been duly authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Units, the Fixed-Share
Purchase Contracts, the Purchase Contract Agreement and the Pledge
Agreement, will be validly issued, fully paid and nonassessable; and the
Issuable Common Stock conforms to the description of the Stock contained in
the Prospectus;
(h) The issue and sale of the Units by the Company, the execution and
delivery of the Transaction Agreements and the compliance by the Company
with all of the provisions of the Transaction Agreements and the
consummation of the transactions therein and herein contemplated will not
conflict with or result in any breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any security interest, lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant to, any
material indenture, mortgage, deed of trust, loan agreement, contract or
other agreement or instrument to which the Company or the Bank is a party
or by which the Company or the Bank is bound or to which any of the
property or assets of the Company or the Bank is subject, nor will such
action result in any violation of the provisions of the organizational
documents (including Articles of Organization or By-laws) of the Company or
the Bank or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, the Bank
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 Units or the
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issuance of the Issuable Common Stock, or the consummation by the Company
of the transactions contemplated by the Transaction Agreements, except such
as have been, or will have been prior to each Time of Delivery (as defined
in Section 5 hereof), obtained under the 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 Units by the Underwriters;
(i) The statements set forth in the Prospectus under the caption
"Description of the Securities", insofar as they purport to constitute a
summary of the terms of the Units, and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair, in all
material respects;
(j) The Pledge Agreement creates, as collateral security for the
performance when due by the holders from time to time of the SPACES,
Separate PACES (as defined in the Purchase Contract Agreement) and Separate
COVERS (as defined in the Purchase Contract Agreement) of their respective
obligations under the Contracts constituting part of such SPACES, Separate
PACES and Separate COVERS, a legal, valid and perfected security interest
(as defined in the Uniform Commercial Code, as adopted and in effect in the
State of New York (the "NY-UCC")) in favor of the Collateral Agent for the
benefit of the Company, in the right, title and interest of such holders in
the securities and other assets and interests pledged to the Collateral
Agent pursuant to the Pledge Agreement;
(k) Neither the Company nor the Bank is in violation of its
organizational documents (including Articles of Organization or By-laws) or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, which,
individually or in the aggregate, would reasonably be expected to result in
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole;
(l) Other than as set forth in the Prospectus, there are no pending
or, to the Company's knowledge, threatened or contemplated legal or
government actions, suits or proceedings to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, which, taking into account the likelihood
of the outcome, the damages or other relief sought and other relevant
factors, individually and in the aggregate, would reasonably be expected to
result in any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole;
(m) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(n) The Company is a bank holding company registered under the Bank
Holding Company Act of 1956, as amended; and the Company and the Bank are
in substantial compliance with, and conduct their respective businesses in
substantial conformity with, all applicable laws and governmental
regulations governing bank holding companies, banks and subsidiaries of
bank holding companies, respectively, except failures to so comply or be in
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conformity with that could not reasonably be expected to have a material
adverse change on the Company and its subsidiaries taken as a whole;
(o) Ernst & Young, LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(p) The Company is not and, after giving effect to the offering and
sale of the Units, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Underwriters, severally and not jointly, agree to enter into the
Contracts underlying the number of Firm Units set forth opposite the name of
such Underwriter in Schedule I hereto and (b) in the event and to the extent
that the Underwriters shall exercise the election to enter into additional
Contracts underlying Optional Units as provided below, the Company and each of
the Underwriters, severally and not jointly, agree to enter into that number of
additional Contracts as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional Contracts) determined by
multiplying such number of additional Contracts by a fraction, the numerator of
which is the maximum number of Optional Units which such Underwriter is entitled
to purchase as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of Optional Units that
all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to enter into, at
their election, additional Contracts underlying up to 225,000 Optional Units for
the sole purpose of covering sales of Units in excess of the number of Firm
Units. Any such election to enter into such additional Contracts may be
exercised only by written notice from Xxxxxxx, Xxxxx & Co. to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting
forth the aggregate number of Optional Units relating to the Contracts to be
entered into and the date on which such Optional Units are to be delivered, as
determined by Xxxxxxx, Sachs & Co. but in no event earlier than the First Time
of Delivery (as defined in Section 5 hereof) or, unless Xxxxxxx, Xxxxx & Co. and
the Company otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. The Underwriters agree to pledge, through the Purchase Contract Agent,
to the Collateral Agent, on behalf of the initial purchasers of the Units, the
Collateral underlying the Firm Units and the Optional Units with respect to
which the Company and the Underwriters have entered into Contracts. Such pledge
shall be effected by the delivery to the Collateral Agent in New York by the
Underwriters of the Collateral to be pledged at the appropriate Time of Delivery
in accordance with the Pledge Agreement.
4. Upon the authorization by you of the release of the Firm Units, the
several Underwriters propose to offer the Firm Units for sale upon the terms and
conditions set forth in the Prospectus.
5. (a) Certificates in definitive or temporary form for the Units with
respect to which each Underwriter enters into Contracts hereunder, and in such
denominations and registered in such names as Xxxxxxx, Sachs & Co. may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to Xxxxxxx, Xxxxx & Co., through the facilities
of the Depository Trust Company ("DTC"), for the account of such Underwriter,
against delivery to the Collateral Agent of the Collateral relating to such
Units by such Underwriter or on its
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behalf. At such same time, the Company shall pay to you Underwriters'
commissions in the amount of $6.00 per Unit minus $0.71669 per Unit, resulting
in a net payment to you of $5.28 per Unit, in same-day funds, all at the office
of Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Company
will cause the certificates representing the Units to be made available for
checking and packaging at least twenty-four hours prior to the Time of Delivery
(as defined below) with respect thereto at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery and
payment shall be, with respect to the Firm Units, 9:30 a.m., New York City time,
on January 21, 2003 or such other time and date as Xxxxxxx, Xxxxx & Co. and the
Company may agree upon in writing, and, with respect to the Optional Units, 9:30
a.m., New York City time, on the date specified by Xxxxxxx, Sachs & Co. in the
written notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters' election to
purchase such Optional Units, or such other time and date as Xxxxxxx, Sachs &
Co. and the Company may agree upon in writing. Such time and date for delivery
of the Firm Units is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Units, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross receipt for the Units and any additional documents requested by the
Underwriters pursuant to Section 8(o) hereof, will be delivered at the
offices of Ropes & Xxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000-0000 (the "Closing Location"), and the Units will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at
the Closing Location at 3 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 5, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to the last
Time of Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you promptly of any such amendment or
supplement after the last Time of Delivery (other than filings of reports
under the Exchange Act) and 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 Units, and during such same
period 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 with the Commission and to furnish you with
copies thereof; 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 prospectus relating to the Units,
of the suspension of the
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qualification of the Units 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 Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any order preventing
or suspending the use of any prospectus relating to the Units or suspending
any such qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Units 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 Units, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 11:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with written and electronic copies of the
Prospectus, and any amendments or supplements thereto, in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Units 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 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 or the Exchange 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 written
and electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance.
(d) To make generally available to its securityholders 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 earnings 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 thereunder (including, at the option of the Company,
Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell, pledge, grant any option to purchase, make
any short sale or otherwise dispose of, except for the concurrent offering
of Stock and as otherwise provided hereunder, any securities of the Company
that are substantially similar to the Stock, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock (including SPACES) or any such
substantially similar securities (other than pursuant to employee stock
option plans, deferred stock compensation plans, restricted stock programs
and saving-related stock purchase plans in each case existing on, or upon
the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior written
consent of Xxxxxxx, Xxxxx & Co.;
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(f) To use the net proceeds received by it from the sale of the Units
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(g) To use its best efforts to list, subject to notice of issuance,
the Units on the New York Stock Exchange (the "Exchange"); and to use its
best efforts to list, subject to notice of issuance, the Issuable Common
Stock on the Exchange, the Boston Stock Exchange and the Pacific Stock
Exchange;
(h) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(i) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Units (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred.
7. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Units and the Issuable Common Stock under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Blue Sky Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Units and
the Issuable Common Stock; (iii) all expenses in connection with the
qualification of the Units for offering and sale under state securities laws as
provided in Section 6(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(s), (iv) 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 Units; (v) all fees and expenses in connection with listing the
Units and the Issuable Common Stock on the Exchange, the Pacific Stock Exchange
or the Boston Stock Exchange, as applicable; (vi) the cost of preparing the
Units, the Contracts and the Issuable Common Stock and any certificates thereof
and the cost of preparing the Transaction Agreements and any agreements,
documents and instruments incident thereto; (vii) fees, expenses and
disbursements of the Purchase Contract Agent, Collateral Agent, Custodial Agent
and Securities Intermediary and any agent of or counsel to any of the foregoing,
in connection with the Transaction Agreements; (viii) the cost and charges of
any transfer agent or registrar; and (ix) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Units by them, and
any advertising expenses connected with any offers they may make.
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8. The obligations of the Underwriters hereunder, as to the Units to be
delivered at each Time of Delivery, 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 such 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) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
6(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Cravath, Swaine & Xxxxx, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated as of such Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii),
(iii), (iv) and (vi) of subsection (d) below as well as such other related
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) Xxxxxxx Xxxxxxxx Xxxxxxx, General Counsel of the Company, shall
have furnished to you her written opinion (a draft of such opinion is
attached as Annex II(b) hereto), dated as of such 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 validly existing as a corporation or chartered trust company in
good standing under the laws of the Commonwealth of Massachusetts,
with corporate and trust power and authority to own its properties and
conduct its business as described in the Prospectus, and the Company
has all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the Transactions contemplated hereby;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and the Stock conforms to the description of the Stock
contained in the Prospectus; and all of the issued shares of capital
stock of the Bank have been duly authorized and validly issued, are
fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no pending, threatened or
contemplated legal or governmental actions, suits or proceedings to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject,
which, taking into account the likelihood of the outcome, the damages
or other relief sought and other relevant factors, individually or in
the aggregate, would reasonably be expected to result in any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the
10
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as
a whole;
(iv) The execution and delivery by the Company of the Transaction
Agreements and the consummation of the transactions contemplated
thereby and hereby have been duly authorized by all necessary
corporate action on the part of the Company; and each of the
Transaction Agreements has been duly executed and delivered by the
Company;
(v) The issue and sale of the Units being delivered at such Time
of Delivery by the Company, the execution and delivery of the
Transaction Agreements and the compliance by the Company with all of
the provisions of the Transaction Agreements and the consummation of
the transactions therein and herein contemplated will not conflict
with or result in any breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any security interest, lien, charge or
encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement, contract or other agreement or instrument known to such
counsel to which the Company or the Bank is a party or by which the
Company or the Bank is bound or to which any of the property or assets
of the Company or the Bank is subject, nor will such action result in
any violation of the provisions of the organizational documents
(including Articles of Organization or By-laws) of the Company or the
Bank or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company, the Bank or any of their properties;
(vi) 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 Units being delivered at
such Time of Delivery, the issue of the Issuable Common Stock or the
consummation by the Company of the transactions contemplated by the
Transaction Agreements, except such as have been, or will have been
prior to such Time of Delivery, obtained under the 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 Units by the
Underwriters;
(vii) Neither the Company nor the Bank is in violation of its
organizational documents (including Articles of Organization or
By-laws) or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound, which, individually or in the
aggregate, would reasonably be expected to result in any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole;
(viii) The statements set forth in the Prospectus under the
caption "Description of the Securities", insofar as they purport to
constitute a summary of the terms of the Units, and under the caption
"Underwriting", insofar as they purport to describe the
11
provisions of the laws and documents referred to therein, are
accurate, complete and fair, in all material respects;
(ix) The Units being delivered at such Time of Delivery have been
duly authorized and, when duly executed, authenticated and delivered
against payment therefor as provided herein and in the Purchase
Contract Agreement, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and will be in the
form contemplated by, and will be entitled to the benefits of, the
Purchase Contract Agreement; the Units conform to the description
thereof contained in the Prospectus; the issuance of the Units is not
subject to preemptive or other similar rights; the Issuable Common
Stock has been duly authorized and reserved for issuance, and when
issued and delivered in accordance with the provisions of the
Fixed-Share Purchase Contracts, the Purchase Contract Agreement and
the Pledge Agreement, will be validly issued, fully paid and
nonassessable; and the Issuable Common Stock conforms to the
description of the Stock contained in the Prospectus;
(x) The Purchase Contract Agreement has been duly authorized,
executed and delivered by the Company and assuming due authorization,
execution and delivery thereof by the Purchase Contract Agent,
constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Purchase Contract
Agreement conforms to the description thereof contained in the
Prospectus;
(xi) The Contracts underlying the Units being delivered at such
Time of Delivery have been duly authorized, issued and delivered and
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Contracts
conform to the description thereof contained in the Prospectus;
(xii) The Pledge Agreement has been duly authorized, executed and
delivered by the Company and assuming due authorization, execution and
delivery thereof by the Collateral Agent and the Purchase Contract
Agent, constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Pledge
Agreement conforms to the description thereof contained in the
Prospectus;
(xiii) The Company is not and, after giving effect to the
offering and sale of the Units, will not be an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act; and
(xiv) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to such Time of
12
Delivery (other than the financial statements and related schedules
and other financial and accounting data therein, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents became effective or were so filed, as
the case may be, contained, in the case of a registration statement
which became effective under the Act, 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, or, in the case of other documents which were filed under
the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(xv) The Registration Statement and the Prospectus and any
further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules and other financial and accounting data therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (viii) of
this section 8(c), they have no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and other financial and
accounting data therein, as to which such counsel need express no
opinion) 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 or that, as of its date,
the Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial and accounting
data therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
and other financial and accounting data therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus or
13
required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or
described as required;
(d) Ropes and Xxxx, counsel for the Company, shall have furnished to
you their written opinion (a draft of such opinion is attached as Annex
II(c) hereto), dated as of such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Each of the Company and the Bank is validly existing as a
corporation or chartered trust company in good standing with the
Secretary of State of the Commonwealth of Massachusetts under the laws
of the Commonwealth of Massachusetts, with corporate and chartered
trust power and authority to own its properties and conduct its
business as described in the Prospectus, and the Company has all
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and the Stock conforms to the description of the Stock
contained in the Prospectus; and all of the issued shares of capital
stock of the Bank have been duly authorized and validly issued, are
fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(iii) The execution and delivery by the Company of the
Transaction Agreements have been duly authorized by all necessary
corporate action on the part of the Company; and each of the
Transaction Agreements has been duly executed and delivered by the
Company;
(iv) The statements set forth in the Prospectus under the caption
"Description of the Securities", insofar as they purport to constitute
a summary of the terms of the Units, and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair, in all material respects;
(v) The Pledge Agreement creates, as collateral security for the
performance when due by the holders from time to time of the SPACES,
Separate PACES (as defined in the Purchase Contract Agreement) and
Separate COVERS (as defined in the Purchase Contract Agreement) of
their respective obligations under the Contracts constituting part of
such SPACES, Separate PACES and Separate COVERS being delivered at
such Time of Delivery, a legal, valid and perfected security interest
(as defined in the NY-UCC) in favor of the Collateral Agent for the
benefit of the Company, in the right, title and interest of such
holders in the securities and other assets and interests pledged to
the Collateral Agent pursuant to the Pledge Agreement;
(vi) The Registration Statement and the Prospectus and any
further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules and other financial and accounting data therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness of the
14
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (viii) of
section 8(c), they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial and
accounting data therein, as to which such counsel need express no
opinion) 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 or that, as of its date,
the Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial and accounting
data therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
and other financial and accounting data therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required;
(e) Counsel to Bank One Trust Company, N.A., as Collateral Agent,
Custodial Agent and Securities Intermediary (collectively, the "Agents"),
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance reasonably satisfactory to you, to the
effect that:
(i) Bank One Trust Company, N.A. is a national banking
corporation duly incorporated and validly existing;
(ii) The execution, delivery and performance by the Collateral
Agent, the Custodial Agent and the Securities Intermediary of the
Pledge Agreement have each been duly authorized by all necessary
corporate action on the part of each such Agent; the Pledge Agreement
has been duly executed and delivered by the Collateral Agent, the
Custodial Agent and the Securities Intermediary and constitutes a
valid and legally binding obligation of each of the Agents,
enforceable against such Agents in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(iii) The execution, delivery and performance by the Collateral
Agent, the Custodial Agent and the Securities Intermediary of the
Pledge Agreement do not violate or constitute a breach of the
organizational documents of any of such Agents; and
15
(iv) No consent of any Federal or state banking authority is
required for the execution, delivery or performance by the Agents of
their respective obligations under the Pledge Agreement.
(f) Counsel to Bank One Trust Company, N.A., as Purchase Contract
Agent, shall have furnished to you their written opinion, dated such Time
of Delivery, in form and substance reasonably satisfactory to you, to the
effect that:
(i) Bank One Trust Company, N.A. is a national banking
corporation duly incorporated and validly existing;
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement and the authentication and delivery by the Purchase Contract
Agent of the certificates evidencing the Units have been duly
authorized by all necessary corporate action on the part of the
Purchase Contract Agent; the Pledge Agreement and the Purchase
Contract Agreement have each been duly executed and delivered by the
Purchase Contract Agent and such agreements constitute valid and
legally binding obligations of the Purchase Contract Agent,
enforceable against the Purchase Contract Agent in accordance with
their respective terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and to general equity principles;
(iii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement does not violate or constitute a breach of the
organizational documents of the Purchase Contract Agent; and
(iv) No consent of any Federal or state banking authority is
required for the execution, delivery or performance by the Purchase
Contract Agent of its obligations under the Pledge Agreement and the
Purchase Contract Agreement.
(g) On the date of this Agreement, at the effective date of any
post-effective amendment to the Registration Statement filed subsequent to
the date of this Agreement and also at each Time of Delivery, the
independent accountants who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto (the
executed copy of the letter delivered to you on the date of this Agreement
is attached as Annex I(a) hereto and a draft of the form of letter to be
delivered on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as Annex
I(b) hereto);
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or long-term debt of the
16
Company or any of its subsidiaries (other than (A) issuances of capital
stock upon exercise of options and stock appreciation rights, (B) upon
earn-outs of performance shares, (C) upon repayment of long-term debt in
accordance with its terms, (D) upon conversions of convertible securities,
(E) issuances of capital stock under deferred stock compensation plans,
restricted stock programs and saving-related stock purchase plans, in the
case of (A) through (E) above, which were outstanding on the date of the
latest balance sheet included or incorporated by reference into the
Prospectus, and (F) repurchases of the Stock in accordance with the
Company's stock repurchase program authorized by its Board of Directors) or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Units being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities or preferred stock by
any "nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(j) 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 Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York or Massachusetts State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war or; (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such
event specified in clause (iv) or (v) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Units being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Prospectus;
(k) The Units to be sold at Time of Delivery shall have been duly
listed, subject to notice of issuance, on the Exchange; and the Issuable
Common Stock relating to such Units shall have been duly listed, subject to
notice of issuance, on the Exchange, the Boston Stock Exchange and the
Pacific Stock Exchange;
(l) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from the persons listed on Exhibit A
hereto, substantially to the effect set forth in Subsection 6(e) hereof in
form and substance satisfactory to you;
(m) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
17
(n) The closing of the concurrent offerings of the Company's (i) Stock
and (ii) Floating Rate Medium Term Capital Securities, liquidation amount
$1,000 per Capital Security, shall have occurred; and
(o) The Company shall have furnished or caused to be furnished to you
at such 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 such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section and as to such other matters as
you may reasonably request.
9. (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, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Units, or any amendment or supplement thereto to any
of the foregoing, 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, any preliminary prospectus supplement, the Registration Statement,
the Prospectus and any other prospectus relating to the Units, or any amendment
or supplement thereto to any of the foregoing, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Xxxxx & Co. 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, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Units, or any amendment or supplement thereto to
any of the foregoing, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus and any other prospectus relating to
the Units, or any amendment or supplement thereto to any of the foregoing,
in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through Xxxxxxx, Sachs & Co. 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
18
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 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 Units
to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company 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 agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d)
19
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 Units underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which 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 each
broker-dealer affiliate of any Underwriter; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of
the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the
Units which it has agreed to purchase hereunder you may in your discretion
arrange for you or another party or other parties to purchase such Units on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Units, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Units on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Units, or the Company notifies you that it has so arranged for the purchase
of such Units, you or the Company shall have the right to postpone the Time of
Delivery for such Units 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, 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 which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Units.
(b) If, after giving effect to any arrangements for the purchase of
the Units of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Units which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Units, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of Units
which such Underwriter agreed to purchase hereunder and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Units which such Underwriter agreed to purchase
hereunder) of the Units of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Units of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Units which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Units, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Units of a defaulting Underwriter or
20
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 7 hereof and the indemnity and contribution agreements
in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. 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 or on behalf of 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 Units.
12. If this Agreement shall be terminated pursuant to Section 10 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 7 and 9 hereof; but, if for any other reason, any Units 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
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Units not so delivered, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 7
and 9 hereof; provided, however; that all parties shall only be responsible for
their own out-of pocket expenses, including fees and disbursements of counsel,
if any Units are not delivered by or on behalf of the Company as provided herein
for any of the following reasons: (i) a suspension or material limitation in
trading in securities generally on the Exchange; (ii) a general moratorium on
commercial banking activities declared by either Federal or New York or
Massachusetts State authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or; (iv) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere.
13. 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 jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you in care of Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail or
facsimile to the address or facsimile number of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address or
facsimile number set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 9 and
11 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
21
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Units from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
15. 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.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
17. 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 counterparts shall together constitute one and the same instrument.
18. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
19. The obligations of the Company hereunder, as to the Units to be
delivered at each Time of Delivery, shall be subject to the condition that the
closing of the concurrent offerings of the Company's (i) Stock and (ii) Floating
Rate Medium Term Capital Securities, liquidation amount $1,000 per Capital
Security, shall have occurred.
22
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the 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 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,
State Street Corporation
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President, Controller &
Chief Accounting Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
--------------------------
(Xxxxxxx, Xxxxx & Co.)
Deutsche Bank Securities Inc.
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
On behalf of each of the Underwriters
23
SCHEDULE I
Number of Optional
Units to be
Total Number of Purchased if
Firm Units Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ------------------
Xxxxxxx, Sachs & Co. ........... 1,080,000 162,000
Deutsche Bank Securities Inc. .. 420,000 63,000
Total ..................... ---------------- ------------------
1,500,000 225,000
================ ==================
24
EXHIBIT A
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
X. Xxxxxxxxxxx Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx Xxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Skates
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxxxx
25
