Exhibit 1.5
BANK ONE CAPITAL VI
(a Delaware business trust)
20,000,000 Preferred Securities
7.20% Preferred Securities
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
Dated: September 20, 2001
BANK ONE CAPITAL VI
(a Delaware business trust)
20,000,000 Preferred Securities
7.20% Preferred Securities
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
September 20, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Banc One Capital Markets, Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney, Inc.
UBS Warburg LLC
As representatives of the several Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
BANK ONE CAPITAL VI (the "Trust"), a statutory business trust
organized under the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. (S)(S) 3801 et seq.) (the "Delaware
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Act") and BANK ONE CORPORATION, a Delaware corporation (the "Company" and,
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together with the Trust, the "Offerors") confirm their agreement (the
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"Agreement") with Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") and each
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of the other Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxx Xxxxxxx, Banc One
Capital Markets, Inc., X.X. Xxxxxxx & Sons, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, Prudential Securities Incorporated, Xxxxxxx Xxxxx Barney,
Inc. and UBS Warburg LLC are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Trust and the
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purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 7.20% Preferred Securities (liquidation amount of $25 per
preferred security) of the Trust (the "Preferred
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Securities") set forth in said Schedule A, and with respect to the grant by the
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Trust to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of the additional
Preferred Securities to cover over-allotments, if any. The aforesaid 20,000,000
Preferred Securities (the "Initial Securities") to be purchased by the
Underwriters and all or any part of the 3,000,000 Preferred Securities subject
to the option described in Section 2(b) hereof (the "Option Securities") are
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hereinafter called, collectively, the "Designated Securities."
The Designated Securities will be guaranteed by the Company with
respect to distributions and payments upon liquidation, redemption and otherwise
(the "Preferred Securities Guarantee") pursuant to the Preferred Securities
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Guarantee Agreement (the "Preferred Securities Guarantee Agreement"), dated as
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of September 28, 2001, between the Company and The Chase Manhattan Bank, as
Trustee (the "Guarantee Trustee"). The Preferred Securities and the related
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Preferred Securities Guarantees are referred to herein as the "Securities".
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The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered. The entire proceeds from the
sale of the Securities will be combined with the entire proceeds from the sale
by the Trust to the Company of its common securities (the "Common Securities")
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guaranteed by the Company, to the extent set forth in the Prospectus (as defined
herein), with respect to distributions and payments upon liquidation, and
redemption (the "Common Securities Guarantee" and together with the Preferred
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Securities Guarantee, the "Guarantees") pursuant to the Common Securities
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Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
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with the Preferred Securities Guarantee Agreement, the "Guarantee Agreements"),
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dated as of September 28, 2001, executed and delivered by the Company for the
benefit of the holders of the Common Securities, and will be used by the Trust
to purchase $500,000,000 aggregate principal amount of Junior Subordinated
Deferrable Interest Debentures due October 15, 2031 (the "Subordinated Debt
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Securities") to be issued by the Company and, if all or any part of the Option
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Securities
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are purchased, up to approximately an additional $75,000,000 aggregate principal
amount of Subordinated Debt Securities (the "Option Subordinated Debt
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Securities"). The Preferred Securities and the Common Securities will be issued
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pursuant to the amended and restated declaration of trust of the Trust, dated as
of September 28, 2001 (the "Declaration"), among the Company, as Sponsor, the
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trustees named therein (the "Trustees") and the holders from time to time of
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undivided beneficial interests in the assets of the Trust. The Subordinated Debt
Securities will be issued pursuant to an indenture, dated as of January 1, 1997,
between the Company and The Chase Manhattan Bank, as trustee (the "Debt
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Trustee") (the "Base Indenture"), and a supplement thereto, dated as of
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September 28, 2001 (the "Supplemental Indenture," and together with the Base
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Indenture and any other amendments or supplements thereto, the "Indenture"),
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among the Company and the Debt Trustee.
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a shelf registration statement on Form S-3 (File No. 333-
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47022) covering the registration of, among other securities, (i) the Preferred
Securities, (ii) the Preferred Securities Guarantee and (iii) the Subordinated
Debt Securities under the Securities Act of 1933 (the "1933 Act"), which permits
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the delayed or continuous offering of securities pursuant to Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
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Regulations"). Promptly after execution and delivery of this Agreement, the
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Offerors will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 424(b) ("Rule 424(b)") of the 1933 Act Regulations or (ii) if
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the Offerors have elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
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Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with
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the provisions of Rule 434 and Rule 424(b). The information included in such
Term Sheet that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective is referred to as "Rule 434 Information." Each
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prospectus used before such Rule 424(b) prospectus has been filed and any
prospectus that omitted the Rule 434 Information, in each case that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
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statement, including the
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exhibits thereto, schedules thereto, if any, and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective and including the Rule 434 Information is herein called
the "Registration Statement." Any registration statement filed pursuant to Rule
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462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement" and after such filing the term "Registration Statement"
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shall include the Rule 462 (b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Securities is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
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preliminary prospectus together with the Term Sheet and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
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All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
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Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
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incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties. The Offerors jointly
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and severally represent and warrant to each
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Underwriter as of the date hereof and as of the applicable delivery date, if any
(each such date being hereinafter referred to as a "Delivery Date"), as follows:
(a) Compliance with Registration Requirements. The Company meets
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the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement became effective
and at the Delivery Date, the Registration Statement and any post-effective
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations, the 1934 Act, the regulations of the Commission under the 1934
Act (the "1934 Act Regulations"), and the Trust Indenture Act of 1939 (the
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"1939 Act") and the rules and regulations of the Commission under the 1939
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Act (the "1939 Act Regulations"), and did not and will not contain an
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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. The Prospectus as amended or supplemented, if applicable,
at the Delivery Date and at the Closing Time referred to in Section 2
hereof, will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, the representations and warranties in this subsection
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shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Offerors in writing by any
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Underwriter through Xxxxxx Xxxxxxx expressly for use in the Registration
Statement or Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of the Securities was, at the time of
such delivery, identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(b) Incorporated Documents. The documents incorporated or deemed to
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be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time when they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations, as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at each Delivery Date, did not 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.
(c) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse Effect"),
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whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
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which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular quarterly
dividends on the common stock, par value $0.01 per share, of the Company
(the "Common Stock") and the regular quarterly dividends on the Company's
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Preferred Stock with Cumulative and Adjustable Dividends, Series B ($100
stated value), $0.01 par value; and Preferred Stock with Cumulative and
Adjustable Dividends, Series C ($100 stated value), $0.01 par value, in
amounts per share that are consistent with or a decrease from past practice
or publicly announced increases prior to the date of the Registration
Statement, there has been no dividend or distribution of any kind declared,
paid or made on any class of its Capital Stock.
(d) Good Standing of the Company and its Subsidiaries. The Company
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has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the state of Delaware, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation 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; and each Significant Subsidiary (as
defined in Regulation S-X promulgated by the Commission) of the Company has
been duly incorporated chartered or organized and is validly existing as a
corporation or national banking association, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
organization.
(e) Capitalization. The authorized, issued and outstanding capital
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stock of the Company is as set forth in the Prospectus Supplement in the
column entitled "Actual" under the caption "Capitalization" (except for
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common stock repurchases pursuant to the Company's publicly announced stock
repurchase program and subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or
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employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the Prospectus
or as otherwise described in the Prospectus).
(f) Authorization and Description of Designated Securities. The
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Designated Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; the Designated Securities conform to the statements
relating thereto contained in the Prospectus and such description conforms
to the rights set forth in the instruments defining the same; the holders
of the Designated Securities (the "Security holders") will be entitled to
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the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware; and the issuance of the Designated Securities is
not subject to the preemptive or other similar rights of any security
holder of the Company.
(g) Authorization and Description of Common Securities. The Common
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Securities have been duly and validly authorized by the Trust and upon
delivery by the Trust to the Company against payment therefor as described
in the Prospectus, will be duly and validly issued and fully paid and non-
assessable undivided beneficial interests in the assets of the Trust and
will conform to the description thereof contained in the Prospectus; the
issuance of the Common Securities is not subject to preemptive or other
similar rights; and at each Delivery Date, all of the issued and
outstanding Common Securities of the Trust will be directly owned by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(h) Good Standing of the Trust. The Trust has been duly created and
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is validly existing as a statutory business trust in good standing under
the Delaware Act with the power and authority to own, lease
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and operate its properties and conduct its business as described in the
Prospectus, and the Trust has conducted no business to date, and it will
conduct no business in the future that would be inconsistent with the
description of the Trust set forth in the Prospectus; the Trust is not a
party to or bound by any agreement or instrument other than this Agreement,
the Declaration and the agreements and instruments contemplated by the
Declaration; the Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this Agreement and the
Declaration and described in the Prospectus; and the Trust is not a party
to or subject to any action, suit or proceeding of any nature.
(i) Absence of Defaults and Conflicts. The issue and sale of the
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Preferred Securities and the Common Securities by the Trust, the compliance
by the Trust with all of the provisions of this Agreement, the purchase of
the Subordinated Debt Securities by the Trust and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, loan agreement, mortgage, deed of trust or other agreement
or instrument to which the Trust is a party or by which the Trust is bound
or to which any of the property or assets of the Trust is subject, nor will
such action result in any violation of the provisions of the Declaration or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust or any of its properties;
and no consent, approval, authorization, order, license, certificate,
permit, registration or qualification of or with any such court or other
governmental agency or body is required to be obtained by the Trust for the
issue and sale of the Preferred Securities and the Common Securities by the
Trust, the purchase of the Subordinated Debt Securities by the Trust or the
consummation by the Trust of the transactions contemplated by this
Agreement and the Declaration, except for such consents, approvals,
authorizations, licenses, certificates, permits, registrations or
qualifications as have already been obtained, or as may be required under
the 1933 Act or
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the 1933 Act Regulations or state securities laws or under 1939 Act.
The issuance by the Company of the Guarantees and the Subordinated
Debt Securities, the compliance by the Company with all of the provisions
of this Agreement, the execution, delivery and performance by the Company
of the Declaration, the Subordinated Debt Securities, the Guarantee
Agreements and the Indenture, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, loan agreement, mortgage, deed of
trust, or other material agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of Incorporation or
by-laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties; and no consent, approval, authorization,
order, license, certificate, permit, registration or qualification of or
with any such court or other governmental agency or body is required for
the issue of the Guarantees and the Subordinated Debt Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement, except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already been
obtained, or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or under the 1939 Act.
(j) Authorization of Agreements. This Agreement, the Guarantee
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Agreements, the Subordinated Debt Securities, the Declaration and the
Indenture have each been duly authorized and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the
Guarantee Trustee, in the case of the Declaration, by the Trustees and, in
the case of the Indenture, by the Debt Trustee, will constitute valid and
legally binding obligations of the Company,
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enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforcement is sought in a proceeding at law or in
equity); the Subordinated Debt Securities are entitled to the benefits of
the Indenture; and the Guarantee Agreements, the Subordinated Debt
Securities, the Declaration and the Indenture conform to the descriptions
thereof in the Prospectus.
(k) Accuracy of Exhibits. There are no contracts or documents which
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are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(l) Investment Company Act. The Trust is not, and after giving
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effect to the offering and sale of the Preferred Securities will not be, an
"investment company," or an entity "controlled" by an "investment company,"
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as such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
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(m) Legal or Governmental Proceedings. There are no legal or
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governmental proceedings pending or threatened to which the Trust or the
Company or any of its subsidiaries is a party or to which any of the
properties of the Trust or the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described.
(n) Qualification of Agreements. Each of the Declaration, the
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Indenture and the Preferred Securities Guarantee has been qualified under
the 1939 Act and has been duly authorized by the Company and the Trust, as
applicable.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) Initial
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Securities. On the basis of the
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representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Trust, at the price per security set forth in
Schedule B, the number of Initial Securities set forth in Schedule A opposite
the name of such Underwriter, plus any additional number of Initial Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
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representations and warranties herein contained and subject to the terms and
conditions set forth, the Trust hereby grants an option to the Underwriters,
severally and not jointly, to purchase up to an additional 3,000,000 Preferred
Securities at the price per Preferred Security set forth in Schedule B, plus
accrued distributions from September 28, 2001. The option hereby granted will
expire fourteen calendar days after the closing date of the Preferred Securities
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the Representatives to
the Trust setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and a Delivery Date shall be
determined by the Representatives, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters, acting severally
and not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional Preferred Securities.
(c) Commission. As compensation to the Underwriters for their
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commitments hereunder and in view of
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the fact that the proceeds of the sale of the Securities will be used to
purchase the Subordinated Debt Securities of the Company, the Company hereby
agrees to pay to the Representatives, for the accounts of the several
Underwriters, a commission per security set forth in Schedule B as compensation
to the Underwriters for their commitments under this Agreement.
(d) Payment. Payment of the purchase price for, and delivery of
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certificates for, the Initial Securities shall be made at the offices of
Cravath, Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Representatives and
the Offerors, at 10:00 A.M. (Eastern time) on the sixth business day after the
date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Offerors (such time and date of
payment and delivery being herein called "Closing Time").
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In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives,
the Company and the Trust, on each Delivery Date as specified in the notice from
the Representatives to the Trust.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Xxxxxx Xxxxxxx, individually and not as representative
of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to
be purchased by any Underwriter whose funds have not been
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received by the Closing Time or the Delivery Date, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
At the Closing Time and on each Delivery Date, the Company will pay, or cause to
be paid, the commission payable at such time to the Underwriters under Section
2(b) hereof by wire transfer of immediately available funds to a bank account
designated by Xxxxxx Xxxxxxx.
(e) Denominations; Registration. Certificates for the Initial
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Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Delivery Date, as
the case may be. The certificates for the Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Delivery Date, as the case may be.
SECTION 3. Covenants of the Offerors. Each of the Offerors jointly
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and severally covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
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The Offerors, subject to Section 3(b), will comply with the requirements of
Rule 434 and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or
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threatening of any proceedings for any of such purposes. The Offerors will
promptly effect the filings necessary pursuant to Rule 424(b) and will take
such steps as they deem necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file
such prospectus. The Offerors will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Offerors will give the Representatives
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notice of their intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Offerors have furnished
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or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
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pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Continued Compliance with Securities Laws. The Offerors will
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comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriters or the Offerors, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Offerors will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the Offerors will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(e) Blue Sky Qualifications. The Offerors will use their best
------------------------
efforts, in cooperation with the Underwriters, to qualify the Preferred
Securities and the Subordinated Debt Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as
the Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided,
17
however, that each of the Offerors shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Offerors will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(f) Rule 158. The Trust and the Company will make generally
---------
available to their Security holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(g) Restriction on Sale of Securities. During a period of fourteen
----------------------------------
days from the date hereof, neither the Trust nor the Company will, without
the prior written consent of Xxxxxx Xxxxxxx, directly or indirectly, offer,
sell, offer to sell or otherwise dispose of any Preferred Securities, any
other beneficial interests in the assets of the Trust, or any preferred
securities or other securities of the Trust or the Company which are
substantially similar to the Preferred Securities, including any guarantee
of such securities. The foregoing sentence shall not apply to any of the
Securities to be sold hereunder.
(h) Reporting Requirements. The Company, during the period when the
-----------------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
18
SECTION 3A. Covenants of the Underwriters. Each of the Underwriters
------------------------------
represents and agrees as follows:
(a) Compliance with NASD Conduct Rules. The Underwriters will comply
-----------------------------------
with the provisions of Rule 2810 of the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD"), including, without
----
limitation, sections (b)(2)(B) and (b)(3)(D) thereof.
(b) Sales in United Kingdom. Each Underwriter (a) has not offered or
------------------------
sold and prior to the date six months after the date of issue of the
Preferred Securities will not offer or sell any Preferred Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their businesses or otherwise
in circumstances which do not constitute an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, (b) has complied, and will comply with, all applicable
provisions of the Financial Services Act of 1986 of Great Britain with
respect to anything done by it in relation to the Preferred Securities in,
from or otherwise involving the United Kingdom, and (c) has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issuance of the Preferred Securities
to a person who is of a kind described in Article 11(3) of the Financial
Services Act of 1986 (Investment Advertisements) (Exemptions) Order 1996 of
Great Britain (as amended) or is a person to whom the document may
otherwise lawfully be issued or passed on.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
--------------------
all expenses incident to the performance of each Offeror's obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may
19
be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters, (iv) the fees and
disbursements of the Company's and the Trust's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(e) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectus and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (viii) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review, if any, by the NASD of the terms of the sale of the Securities, (ix) the
fees and expenses of the Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee, in connection with the Indenture and the
Subordinated Debt Securities, (x) the fees and expenses of the Institutional
Trustee and the Delaware Trustee (each as defined in the Declaration), including
the fees and disbursements of counsel for the Institutional Trustee and the
Delaware Trustee, in connection with the Declaration and the Certificate of
Trust, (xi) any fees charged by securities rating services for rating the
Preferred Securities and the Subordinated Debt Securities, (xii) the fees and
expenses of any transfer agent or registrar for the Securities, (xiii) the cost
of qualifying the Preferred Securities with The Depository Trust Company, (xiv)
the fees and expenses of the Preferred Guarantee Trustee, including the fees and
disbursements of counsel for the Preferred Guarantee Trustee, and (xv) the fees
and expenses incurred in connection with the listing of the Preferred Securities
and, if applicable, the Subordinated Debt Securities on the New York Stock
Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
-------------------------
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
20
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
----------------------------------------
of the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any officer of the Offerors or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Offerors
of their covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
----------------------------------------
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time or the relevant Delivery Date, as the case
may be, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of
the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. The Prospectus
shall have been filed with the Commission in accordance with Rule 424(b)
or, if the Offerors have elected to rely upon Rule 434, a Term Sheet shall
have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel. At the Closing Time or the relevant Delivery
-------------------
Date, as the case may be, the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time of
Xxxxxxxxx X. Xxxxxxx, Esq., Chief Legal Officer or on the relevant
Delivery Date, of a deputy general counsel, for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit A.
(ii) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Xxxxxxxx, Xxxxxx and
Finger LLP, special Delaware counsel for the Offerors, in form
21
and substance satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit B.
(iii) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Cravath, Swaine &
Xxxxx, counsel for the Institutional Trustee, in form and substance
satisfactory to counsel for the Underwriters, substantially in the
form set forth in Exhibit C.
(iv) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Cravath, Swaine &
Xxxxx, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters.
(v) The favorable opinion, dated as of the Closing Time of
Cravath, Swaine & Xxxxx, special tax counsel for the Offerors, in form
and substance satisfactory to the Underwriters.
(c) Officers' Certificate. At the Closing Time or the relevant
----------------------
Delivery Date, as the case may be, since the date hereof or since the
respective dates as of which information is given in the Prospectus, there
shall not have been any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
either the Company and its subsidiaries considered as one enterprise, or
the Trust, as the case may be, whether or not arising in the ordinary
course of business and the Representatives shall have received a
certificate, dated as of the Closing Time or the relevant Delivery Date, as
the case may be, from each of (a) the President, Vice Chairman, Treasurer
or a Vice President of the Company and of the chief financial officer or
chief accounting officer of the Company and (b) a Regular Trustee (as
defined in the Declaration) of the Trust, to the effect that (i) there has
been no such material adverse change in the conditions of the Company or
the Trust, as the case may be, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
22
though expressly made at and as of Closing Time or the relevant Delivery
Date, as the case may be, (iii) the Company or the Trust, as the case may
be, has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time or the
relevant Delivery Date, as the case may be, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
are contemplated by the Commission.
(d) Accountant's Comfort Letter. At the Closing time, the
----------------------------
Representatives shall have received from both Xxxxxx Xxxxxxxx LLP and KPMG
Peat Marwick a letter dated such date, in form and substance satisfactory
to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(e) Maintenance of Rating. At the Closing Time or the relevant
----------------------
Delivery Date, as the case may be, the Preferred Securities and the
Subordinated Debt Securities shall be rated in one of the four highest
rating categories for long term debt ("Investment Grade") by Moody's
----------------
Investor's Service and by Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc., and the Company shall have delivered to the
Representatives a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming
that the Preferred Securities and the Subordinated Debt Securities have
such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Preferred Securities
or the Subordinated Debt Securities or any of the Company's other
securities by any "nationally recognized statistical rating agency," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that
it has under surveillance or review its
23
rating with a negative implication of the Preferred Securities and the
Subordinated Debt Securities or any of the Company's other securities.
(f) Additional Documents. At the Closing Time, counsel for the
---------------------
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Preferred Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Offerors in connection with the issuance and sale of the
Preferred Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(g) Termination of Agreement. If any condition specified in this
-------------------------
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Delivery Date which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Offerors at any time at or prior to Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
(h) Approval of Listing. At the Closing Time, the Preferred
--------------------
Securities shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
SECTION 6. Indemnification. (a) Indemnification of Underwriters.
----------------
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who
24
controls any Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue state statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
there in, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements
of counsel chosen by Xxxxxx Xxxxxxx), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above; provided, however, that this
indemnity agreement shall not apply to any
25
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxx
Xxxxxxx expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that this indemnity
agreement with respect to any preliminary prospectus shall not inure
to the benefit of any underwriter from whom the person asserting any
such losses, liabilities, claims, damages or expenses purchased
Securities, or any person controlling such Underwriter, if the
Offerors sustain the burden that a copy of the Prospectus (as then
amended or supplemented if the Offerors shall have furnished any such
amendments or supplements thereto), but excluding documents
incorporated or deemed to be incorporated by reference, was not sent
or given by or on behalf of such Underwriter to such person, if such
is required by law, at or prior to the written confirmation of the
sale of such Securities to such person and if the Prospectus (as so
amended or supplemented, but excluding documents incorporated or
deemed to be incorporated by reference therein) would have corrected
the defect giving rise to such loss, liability, claim, damage or
expense, it being understood that this proviso shall have no
application if such defect shall have been corrected in a document
which is incorporated or deemed to be incorporated by reference in the
Prospectus.
(b) Indemnification of Offerors, Directors and Officers. Each
----------------------------------------------------
Underwriter severally agrees to indemnify and hold harmless the Offerors, their
directors, trustees, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Offerors within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
26
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Offerors by such Underwriter through Xxxxxx
Xxxxxxx expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
--------------------------------------
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by Xxxxxx
Xxxxxxx, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
-------- -------
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the
27
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding 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.
SECTION 7. Contribution. If the indemnification provided for in
-------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) 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 hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, 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 hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Preferred
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting commissions received by the Underwriters,
in each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue
28
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters 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 Section 7 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 Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages 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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the
29
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
---------
Agreement or in certificates of officers or Trustees of the Offerors submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Offerors, and shall survive delivery of the
Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement. (a) Termination; General. The
------------------------- ---------------------
Representatives may terminate this Agreement, by notice to the Offerors, at any
time at or prior to Closing Time (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Designated Securities or to enforce contracts for
the sale of the Designated Securities, or (iii) if trading in any securities of
the Company has been suspended by the Commission or the New York Stock Exchange,
or if trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market System has been suspended or limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or
30
by order of the Commission, the NASD or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York or
Illinois State authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
------------
Section, such termination shall be without liability of any party to any other
party except as provided in section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or
-------------------------------------------
more of the Underwriters shall fail at Closing Time or a Delivery Date to
purchase the Designated Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Representatives shall
--------------------
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Designated Securities, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Designated Securities, this Agreement or, with respect to any Delivery
Date which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Offerors to the sell the Option
Securities shall terminate without liability on the part of any non-
defaulting Underwriter.
31
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, or, in the case of a Delivery Date which is after
the Closing Time, which does not result in a termination of the obligation of
the Underwriters to purchase and the Trust to sell the relevant Option
Securities, as the case may be, either the Representatives or the Offerors shall
have the right to postpone Closing Time or the relevant Delivery Date, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
--------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at c/o Morgan Xxxxxxx &
Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxx;
notices to the Trust and the Company shall be directed to them at 0 Xxxx Xxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Treasurer.
SECTION 12. Parties. This Agreement shall each inure to the benefit
--------
of and be binding upon the Underwriters and the Trust and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Trust and the Company and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Trust and the Company and their respective successors, and said
controlling persons and officers and directors and their
32
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
-----------------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
33
SECTION 14. Effect of Headings. The Article and Section headings
-------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Trust and the Company in accordance with its
terms.
Very truly yours,
BANK ONE CAPITAL VI
by
__________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Regular Trustee
34
BANK ONE CORPORATION
by
__________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
Xxxxxx Xxxxxxx & Co. Incorporated
BANC ONE CAPITAL MARKETS, INC.
X.X. XXXXXXX & SONS, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX BARNEY INC.
UBS WARBURG LLC
By: Xxxxxx Xxxxxxx & Co. Incorporated
By
__________________________
Name: Xxxxxxx Xxxxx
Title: Principal
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
SCHEDULE A
Number of
Name of Underwriters Preferred Securities
-------------------- --------------------
Xxxxxx Xxxxxxx & Co. Incorporated........................................................................ 2,309,000
Banc One Capital Markets, Inc............................................................................ 2,308,500
X.X. Xxxxxxx & Sons, Inc................................................................................. 2,308,500
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated....................................................... 2,308,500
Prudential Securities Incorporated....................................................................... 2,308,500
Xxxxxxx Xxxxx Barney Inc................................................................................. 2,308,500
UBS Warburg LLC.......................................................................................... 2,308,500
ABN AMRO Incorporated.................................................................................... 120,000
Banc of America Securities LLC........................................................................... 120,000
Bear, Xxxxxxx & Co. Inc.................................................................................. 120,000
CIBC World Markets Corp.................................................................................. 120,000
Credit Suisse First Boston Corporation................................................................... 120,000
Xxxx Xxxxxxxx Incorporated............................................................................... 120,000
Deutsche Banc Alex. Xxxxx Inc............................................................................ 120,000
First Union Securities, Inc.............................................................................. 120,000
Xxxxxxx, Sachs & Co...................................................................................... 120,000
H&R Block Financial Advisors, Inc........................................................................ 120,000
Xxxxxx Brothers Inc...................................................................................... 120,000
Xxxx Xxxxx Xxxx Xxxxxx Incorporated...................................................................... 120,000
Quick & Xxxxxx........................................................................................... 120,000
Xxxxxxx Xxxxx & Associates, Inc.......................................................................... 120,000
Xxxxxxx Xxxxxx & Co., Inc................................................................................ 120,000
U.S. Bancorp Xxxxx Xxxxxxx Inc........................................................................... 120,000
Wachovia Securities, Inc................................................................................. 120,000
Advest Inc............................................................................................... 60,000
Xxxxxx X. Xxxxx & Co. Incorporated....................................................................... 60,000
BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx................................................ 60,000
Xxxxxxxxx & Company LLC.................................................................................. 60,000
X.X. Xxxxxxxx & Co....................................................................................... 60,000
Xxxxx Securities Inc..................................................................................... 60,000
Xxxxxxxxxx & Co. Inc..................................................................................... 60,000
Fifth Third Securities, Inc.............................................................................. 60,000
First Albany Corporation................................................................................. 60,000
Gibraltar Securities Co.................................................................................. 60,000
Gruntal & Co., L.L.C..................................................................................... 60,000
HSBC Securities (USA) Inc................................................................................ 60,000
J.J.B. Xxxxxxx, X.X. Xxxxx, Inc.......................................................................... 60,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC.............................................................................. 60,000
Josephthal & Co. Inc..................................................................................... 60,000
X.X. Xxxx & Associates, Inc.............................................................................. 60,000
2
McDonald Investments Inc., a KeyCorp Company............................................................. 60,000
XxXxxx, Xxxxx & Co. Inc.................................................................................. 60,000
Mesirow Financial, Inc................................................................................... 60,000
Xxxxxx/Xxxxxx Incorporated............................................................................... 60,000
Pershing/Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx........................................................ 60,000
Xxxxxx Xxxxxxx & Co., Inc................................................................................ 60,000
Southwest Securities, Inc................................................................................ 60,000
Xxxxxx, Xxxxxxxx & Company Incorporated.................................................................. 60,000
SunTrust Equitable Securities............................................................................ 60,000
TD Securities (USA) Inc.................................................................................. 60,000
Xxxxxx Xxxxxxx Incorporated.............................................................................. 60,000
Xxxxxxxx Capital Partners, L.P........................................................................... 60,000
Xxxxx Fargo Xxx Xxxxxx & Co.............................................................................. 60,000
The Xxxxxxxx Capital Group, L.P.......................................................................... 60,000
SCHEDULE B
BANK ONE CAPITAL VI
20,000,000 Preferred Securities
7.2% Preferred Securities
(Liquidation Amount of $25 Per Preferred Security)
1. The initial public offering price per security for the Preferred
Securities, determined as provided in Section 2, shall be $25.00.
2. The purchase price per security for the Preferred Securities to
be paid by the several Underwriters shall be $25.00, being an amount equal to
the initial public offering price set forth above; provided that the purchase
price per Preferred Security for any Option Securities purchased upon exercise
of the over-allotment option described in Section 2(b) shall be increased by an
amount per Preferred Security equal to any accrued distributions through the
Delivery Date on which such Option Securities are purchased.
3. The Underwriters propose to offer the Preferred Securities, in
part, to certain securities dealers at the initial public offering price per
security less a concession of $0.50 per Preferred Security. The Underwriters
may allow, and such dealers may reallow, a concession not in excess of $0.45 per
Preferred Security to certain brokers and dealers.
4. The commission per Preferred Security to be paid by the Company
to the Underwriters for their commitments hereunder shall be $0.7875 per
Preferred Security, or $15,750,000 in the aggregate. However, such commission
will be $0.50 per Preferred Security for sales of 10,000 or more Preferred
Securities to a single purchaser.
Exhibit A
FORM OF OPINION OF XXXXXXXXX X. XXXXXXX, ESQ.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
Exhibit B
FORM OF OPINION OF XXXXXXXX, XXXXXX & FINGER, P.A.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
Exhibit C
FORM OF OPINION OF CRAVATH, SWAINE & XXXXX
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(iii)
