Exhibit 1(b)
M&T BANK CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
Dear Ladies and Gentlemen:
M&T Bank Corporation, a New York corporation (the "Corporation")
proposes, upon the terms and conditions set forth herein, to issue and sell the
principal amount of its debt securities identified in Schedule 1 hereto (the
"Debt Securities") to the underwriters named in Schedule 2 hereto (collectively,
the "Underwriters"), for whom the person(s) named in Schedule 3 hereto (the
"Representative(s)") is acting as representative. The Debt Securities are to be
issued pursuant to the terms of an indenture dated as of ____________, _______
(the "Indenture"), between the Corporation and ____________________, as trustee
(the "Trustee").
The Corporation has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-_______),
including a basic prospectus, for the registration of the Debt Securities under
the Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Corporation has
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the Commission. The registration statement as
amended at the time it became effective (including the Prospectus (as defined
below) and the documents incorporated by reference therein pursuant to the
section therein entitled "Where You Can Find More Information", all
information deemed to be a part of the registration statement at the time it
became effective pursuant to Rule 430A(b) of the Securities Act Regulations),
any post-effective amendment to such registration statement which becomes
effective prior to the Closing Date (as defined below) and any registration
statement filed pursuant to Rule 462(b) under the Securities Act is hereinafter
called the "Registration Statement." The term the "Effective Date" shall mean
each date that the Registration Statement and any post effective amendment or
amendments thereto became or become effective. "Basic Prospectus" shall mean the
prospectus referred to in the first sentence of this paragraph above contained
in the Registration Statement at the Effective Date. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Debt Securities and the offering thereof and is
used prior to filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement or term
sheet relating to the Debt Securities that is first filed pursuant to Rule
424(b) or Rule 434 after the date and time this Agreement is executed and
delivered by the parties, together with the Basic Prospectus or, if no filing
pursuant to Rule 424(b) or Rule 434 is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus, included
in the Registration Statement at the Effective Date.
The Corporation hereby agrees with the Underwriters as follows:
1. Representations and Warranties. The Corporation represents and
warrants to the Underwriters that as of the date hereof and on the Closing Date
(as hereinafter defined):
(a) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) or Rule 434 and on the Closing Date, the Final Prospectus will conform,
in all material respects with the requirements of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), with respect
to the documents incorporated by reference, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the applicable rules and regulations
under said acts; the Indenture conforms in all material respects with the
requirements of the Trust Indenture Act, and the applicable rules and
regulations thereunder; the Registration Statement did not, and any amendment
thereto will not, in each case as of the Effective Date, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements made not misleading; and the Final Prospectus and any
amendment or supplement thereto will not, as of the applicable filing date and
at the Closing Date (as hereinafter defined), contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and warranties in
this subsection shall not apply to (i) statements in or omissions from the
Registration Statement or the Final Prospectus made in reliance upon and in
conformity with information furnished to the Corporation by or on behalf of any
Underwriter in writing expressly for use in the Registration Statement or the
Final Prospectus or (ii) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee.
(b) The documents incorporated by reference in the Prospectus pursuant
to the section therein entitled "Where You Can Find More Information," at the
time they were filed with the Commission, complied in all material respects with
the requirements of the Securities Act and the Securities Act Regulations, and
did not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading.
(c) The Corporation is not an open-end investment company, unit
investment trust or face-amount certificate company that is, or is required to
be, registered under Section 8 of the Investment Company Act of 1940, as amended
(the "Investment Company Act"), nor is the Corporation a closed-end investment
company required to be registered but not registered thereunder.
(d) The Corporation meets the requirements for the use of Form S-3
under the Securities Act.
2
(e) No stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings therefor
have been initiated or threatened by the Commission.
(f) The Corporation is a corporation duly organized and validly
existing and in good standing under the laws of the State of New York and is
licensed, registered or qualified to conduct the business in which it is engaged
in each jurisdiction in which the conduct of its business or its ownership or
the leasing of property requires such license, registration or qualification,
except where the failure to be so licensed, registered or qualified would not
have a material adverse effect on the Corporation and its subsidiaries, taken as
a whole.
(g) The Debt Securities have been duly and validly authorized, and,
when duly executed, authenticated and delivered pursuant to this Agreement and
the Indenture against payment of consideration therefor in accordance with this
Agreement, such Debt Securities will be valid and legally binding obligations of
the Corporation enforceable in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, the rights of creditors of
federally-insured depository institutions, the supervisory and enforcement
powers of applicable bank regulatory authorities and general equity principles
(whether considered as a proceeding at law or in equity) and will be entitled to
the benefits of the Indenture; the Indenture has been duly qualified under the
Trust Indenture Act; the Indenture and the Debt Securities conform in all
material respects to the description thereof contained in the Registration
Statement and the Final Prospectus.
(h) The Indenture has been duly authorized by the Corporation and when
validly executed and delivered by the Corporation and the Trustee will
constitute a valid and legally binding obligation of the Corporation,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights, the rights of creditors of federally-insured depository institutions,
the supervisory and enforcement powers of applicable bank regulatory authorities
and general equity principles (whether considered as a proceeding at law or in
equity).
(i) The issue and delivery of the Debt Securities, the compliance by
the Corporation with all of the provisions of this Agreement, the Debt
Securities and the Indenture, the execution, delivery and performance by the
Corporation of this Agreement and the Indenture and the consummation of the
transactions contemplated herein and therein will not violate any law, rule,
regulation, order, judgment or decree applicable to the Corporation or conflict
with or result in a breach of or constitute a default under any agreement or
instrument (including, but not limited to, any charters or by-laws) by which the
Corporation or its property is bound, except where such violation, conflict or
breach would not have a material adverse effect upon the financial condition,
business or results of operations of the Corporation and its subsidiaries, taken
as a whole.
(j) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the consummation by the Corporation of the transactions contemplated by this
Agreement or the Indenture, except such as have been or
3
will have been, prior to the Time of Delivery, obtained under the Securities Act
or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the issuance by the Corporation of the Debt
Securities.
(k) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus and in any documents deemed to
be incorporated by reference in the Registration Statement pursuant to Item
12(b) of Form S-3, except as otherwise stated therein, there has not been any
material adverse change in the financial condition, business or results of
operations of the Corporation and its subsidiaries, taken as a whole.
(l) Other than as set forth or contemplated in the Registration
Statement and the Final Prospectus, there are no legal or governmental
proceedings pending to which the Corporation is a party or of which any property
of the Corporation is the subject that could reasonable be expected,
individually or in the aggregate, to have a material adverse effect on the
financial position, business or results of operations of the Corporation and its
subsidiaries, taken as a whole; and, to the best of the Corporation's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
2. Offering. The Representative has advised the Corporation that
the Underwriters will make an offering of the Debt Securities purchased by such
Underwriters hereunder on the terms and conditions set forth in the Registration
Statement AS SOON AS PRACTICABLE AFTER THIS AGREEMENT IS ENTERED INTO.
3. Purchase and Delivery; Commission. The Corporation hereby
agrees to sell to the Underwriters and each Underwriter, severally and not
jointly, upon the basis of the representations and warranties herein contained,
but subject to the conditions hereinafter stated, agrees to purchase from the
Corporation, at the purchase price set forth in Schedule 1 hereto, the principal
amount of Debt Securities set forth opposite such Underwriter's name on Schedule
2 hereto.
Except as set forth in the next paragraph, the Debt Securities to be
purchased by each Underwriter hereunder will be represented by one or more
definitive global Debt Securities in book entry form which will be deposited by
or on behalf of the Corporation with The Depository Trust Company ("DTC") or its
designated custodian. The Corporation will deliver the Debt Securities to the
Representative, for the account of each Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks or fedwire, payable to the order of the
Corporation in Federal (same day) funds, by causing DTC to credit the Debt
Securities to the account of the Representative at DTC. The Corporation will
cause the certificates representing the Debt Securities to be made available to
the Representative for checking at least 24 hours prior to the Time of Delivery
at the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be at the offices of _________,
at 9:30 a.m, New York time, on __________, _____ (the "Closing Date") or such
other time and date as the Representative and the Corporation may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
4
Such Debt Securities, if any, as the Representative may request upon at
least 48 hours' prior notice to the Corporation (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by and on behalf of the
Corporation to the Representative for the account of certain of the
Underwriters, against payment by or on behalf of such Underwriter of the
purchase price therefor by fedwire, payable to the order of the Corporation in
Federal (same day) funds. The Corporation will cause the certificates
representing the Debt Securities to be made available for checking and packaging
at least 24 hours prior to the Time of Delivery in New York, New York.
4. Conditions to Closing. The several obligations of the
Underwriters to purchase and pay for the Debt Securities will be subject to the
following conditions:
(a) If filing of the Final Prospectus is required pursuant to Rule
424(b) or Rule 434 of the Securities Act Regulations, the Final Prospectus shall
have been timely filed with the Commission in accordance with Rule 424(b) or
Rule 434 of the Securities Act Regulations; and at the Closing Date, no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued under the Securities Act or proceedings therefor
initiated or threatened by the Commission.
(b) The Underwriters shall have received, on the Closing Date, a
certificate signed by the Chairman of the Board, the President, a Vice Chairman
of the Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Corporation, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Corporation
in this Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Corporation has complied in all material respects with all the agreements and
satisfied in all material respects all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Corporation's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the financial condition,
business or results of operations of the Corporation and its subsidiaries taken
as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(c) Subsequent to the date hereof or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any amendment thereof), there
shall not have been any change, or any development involving a prospective
change, in or affecting the business or properties of the Corporation and its
subsidiaries the effect of which is, in the reasonable judgment of the
Underwriters, so material and
5
adverse as to make it impractical or inadvisable to proceed with
the offering or the delivery of the Debt Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment thereof).
(d) The Underwriters shall have received an opinion, dated the Closing
Date, of the Corporation's General Counsel, substantially in the form attached
hereto as Exhibit A. In rendering such opinion, such counsel may state that he
is passing only on matters of New York and United States Federal law. Insofar as
such opinions involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Corporation and its
subsidiaries and certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing
Date, of counsel to the Underwriters as to such matters as the Underwriters
shall reasonably request. In rendering such opinion, counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
them or the Corporation as to laws of any jurisdiction other than the United
States or the State of New York, provided that (i) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
delivered to the Underwriters, and (ii) counsel shall state in their opinion
that they believe that they and the Underwriters are justified in relying
thereon. Insofar as such opinions involve factual matters, such counsel may
rely, to the extent such counsel deems proper, upon certificates of officers of
the Corporation and its subsidiaries and certificates of public officials.
(f) The Debt Securities shall have received a rating from each of two
"nationally recognized statistical rating agencies" (as that term is defined by
the Commission for the purposes of Rule 436(g)(2) under the Securities Act),
each such rating to be not less than the rating set forth in the Final
Prospectus.
(g) At the date hereof and at the Closing Date, the Underwriters shall
have received letters, dated respectively as of the date hereof and as of the
Closing Date, in form and substance reasonably satisfactory to them, from the
Corporation's independent public accountants, 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, including the financial information contained or incorporated by
reference in the Registration Statement as identified by the Representative.
Such letters shall also confirm that, with respect to the Corporation, they are
independent accountants within the meaning of the published rules and
regulations of the American Institute of Certified Public Accountants.
(h) Prior to the Closing Date, the Corporation shall have furnished to
the Underwriters such further information, certificates and documents as the
Underwriters may reasonably request in connection with the offering of the Debt
Securities.
(i) No downgrading in the rating accorded the Debt Securities or any
other debt securities of the Corporation by any "nationally recognized
statistical rating organization" shall have occurred, or any public announcement
that any such organization has under surveillance or review their ratings of the
Debt Securities or any other debt securities of the Corporation (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), and if, in any such
case, the effect thereof in the
6
reasonable judgment of the Underwriters makes it impracticable or inadvisable to
proceed with the purchase of the Debt Securities.
5. Covenants of the Corporation. In further consideration of the
agreements of the Underwriters herein contained, the Corporation covenants as
follows:
(a) The Corporation will prepare the Final Prospectus in a form
approved by the Underwriters and will file such Final Prospectus with the
Commission pursuant to the applicable subparagraph of Rule 424(b) or Rule 434
within the time period prescribed. The Corporation will notify the Underwriters
immediately, and confirm the notice in writing, (i) if not effective at the time
of execution of this Agreement, of the effectiveness of the Registration
Statement and any amendment thereto (including any post-effective amendment),
and of the filing of the Final Prospectus pursuant to Rule 424(b) or Rule 434,
(ii) of any request by the Commission for any amendment to the Registration
Statement, or any amendment or supplement to the Final Prospectus or for
additional information, and (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement of the
suspension of the qualification of the securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for such
purpose. The Corporation will make every reasonable effort to prevent the
issuance of any stop order or of any order suspending any such qualification
and, if any such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Corporation will deliver to the Underwriters such number of
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including documents incorporated by reference into the Final
Prospectus and exhibits thereto) as such Underwriters may reasonably request and
copies of each Preliminary Final Prospectus, the Final Prospectus and any
amendment or supplement to such Final Prospectus.
(c) The Corporation will furnish to the Underwriters, from time to time
during the period when the Final Prospectus is required to be delivered under
the Securities Act, such number of copies of the Final Prospectus (as amended or
supplemented, if applicable) as they may reasonably request for the purposes
contemplated by the Securities Act or the Securities Act Regulations.
(d) The Corporation will deliver to the Underwriters notice of its
intention to prepare or file any amendment to the Registration Statement
relating to the Debt Securities (including any post-effective amendment) or any
amendment or supplement to the Final Prospectus (other than documents deemed to
be incorporated by reference into the Final Prospectus) which the Corporation
proposes for use by the Underwriters in connection with the offering of the Debt
Securities and which differs from the prospectus on file at the Commission at
the time the Registration Statement becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) of the
Securities Act Regulations, will furnish the Underwriters and counsel for the
Underwriters with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which the
Underwriters or counsel for the Underwriters shall reasonably object.
7
(e) If, during such period after the Closing Date and prior to the date
on which the distribution of Debt Securities by the Underwriters is completed,
any event shall occur as a result of which it is necessary, in the opinion of
the Corporation's counsel, to amend or supplement the Final Prospectus (as then
amended or supplemented) in order to ensure that the Final Prospectus does not
contain an untrue statement of a material fact or omit 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 it is necessary to amend or
supplement the Final Prospectus to comply with law, the Corporation will
forthwith prepare and furnish, at the Corporation's own expense, to the
Underwriters, either amendments or supplements to the Final Prospectus so that
the statements in the Final Prospectus as so amended or supplemented will not,
in the light of the circumstances under which they were made, be misleading or
so that the Final Prospectus will comply with law, as the case may be.
(f) The Corporation, during the period when the Final Prospectus is
required to be delivered under the Securities Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act subsequent to the time the Registration Statement becomes
effective.
(g) The Corporation will endeavor to qualify the Debt Securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
any Underwriter shall reasonably request and to pay all reasonable expenses
(including reasonable fees and disbursements of counsel) in connection with such
qualification and the printing of any memoranda concerning the aforesaid
qualification; provided, however, that the Corporation shall not be required to
qualify to do business in any jurisdiction where it is not now qualified or to
take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now subject.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, the Corporation will not offer, sell, contract
to sell or otherwise dispose of (other than in an offering made exclusively
outside the United States) any securities of the Corporation substantially
similar to the Debt Securities or any securities convertible into or
exchangeable for the Debt Securities without the prior written consent of the
Underwriters.
(i) During the period when the Debt Securities are outstanding, the
Corporation will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(j) The Corporation will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
18 months after the effective date of the Registration Statement, an earnings
statement or statements of the Corporation (which need not be audited) which
shall satisfy the requirements of Section 11(a) of the Securities Act and Rule
158 of the Securities Act Regulations and will advise you in writing when such
statement has been so made available.
6. Expenses. The Corporation covenants and agrees with the
Underwriters that the Corporation will, whether or not any sale of the Debt
Securities is consummated, pay or cause to be paid the following: (i) costs of
preparation and printing (including reasonable word processing
8
and duplication costs) of the Registration Statement and the Final Prospectus,
and all amendments and supplements thereto, (ii) all expenses (including
reasonable fees and disbursements of counsel to the Corporation) payable
pursuant to Section 5(g) of this Agreement, (iii) all costs and expenses
incurred in connection with the preparation, issuance and delivery of the Debt
Securities, (iv) the fees and disbursements of the Corporation's accountants,
(v) all costs and expenses incurred in the preparation and the printing
(including word processing and duplication costs) of the Debt Securities and the
Indenture and all other documents relating to the issuance, purchase and initial
resale of the Debt Securities, (vi) the costs of assigning a rating or ratings
to the Debt Securities and (vii) all other costs and expenses incident to the
performance by the Corporation of its obligations hereunder which are not
otherwise specifically provided in this Section. The Underwriters shall be
responsible for all of their own expenses, including the fees of the
Underwriters' counsel, any taxes on resales of the Debt Securities by the
Underwriters and any advertising expenses connected with any offers they make.
7. Indemnification and Contribution
(a) The Corporation agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls each such Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus, the Final Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made,
not misleading; provided, however, that (i) the Corporation shall not be liable
in any such case insofar as such losses, claims, damages or liabilities arise
out of or are based upon (x) any such untrue statement or omission made therein
upon in reliance upon and in conformity with information furnished in writing to
the Corporation by the Underwriters expressly for use therein or (y) that part
of the Registration Statement constituting the "Statement of Eligibility and
Qualification" (Form T-1) of the Trustee under the Trust Indenture Act, and (ii)
the foregoing indemnity agreement with respect to the Basic Prospectus, any
Preliminary Final Prospectus, the Final Prospectus or any amendment or
supplement thereto shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
Debt Securities, or any person controlling such Underwriter, if a copy of the
Final Prospectus (as then amended or supplemented if the Corporation shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of the Debt Securities to such persons, to the extent
that the Final Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability. This indemnity
agreement shall be in addition to any liability that the Corporation may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Corporation and any authorized representative of the
Corporation and any person controlling the Corporation, to the same extent as
the foregoing indemnity from the Corporation to the Underwriters, but only with
reference to information furnished in writing by such Underwriter expressly for
use in the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus, the Final Prospectus or any amendments or supplements thereto. The
Corporation
9
acknowledges that the statements set forth in _______________ of the Basic
Prospectus, any Preliminary Final Prospectus, or the Final Prospectus constitute
the only information furnished in writing by or on behalf of the Underwriters
for use in the Registration Statement, and the Representative confirms that such
statements are correct. This indemnity agreement shall be in addition to any
liability that any Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be threatened or instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 7, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing (but the
omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party other than under this
Section 7) and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and pay the reasonable fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and the representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. In the case of parties indemnified pursuant to paragraph
(a) of this Section 7, such separate firm shall be designated in writing by the
Representative. In the case of parties indemnified pursuant to paragraph (b) of
this Section 7, such separate firm shall be designated in writing by the
Corporation. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation on the one hand and the Underwriters on the other from the
offering of the Debt Securities or (ii) if the allocation provided by clause (i)
above 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 Corporation on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Corporation on the one hand and the Underwriters on the other in connection with
the offering of such Debt Securities shall be deemed to be in the same
proportion as the total net proceeds (before deducting expenses) from the
offering of such Debt Securities received by the Corporation bear to the total
10
discounts and commissions received by such Underwriter in respect thereof. The
relative fault of the Corporation on the one hand and of the Underwriters on the
other 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
Corporation or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statements or
omissions.
(e) The Corporation 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 or by any other method of allocation that does not take
account of the considerations referred to in paragraph (d) of this Section 7.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) of this Section 7
shall be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
(f) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Corporation and the Underwriters
in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of a Underwriter or any person controlling such Underwriter, or by or on
behalf of the Corporation, its directors or officers, any authorized
representative of the Corporation or any person controlling the Corporation, and
(iii) acceptance of and payment for any of the Debt Securities.
8. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice to the Corporation, if
prior to the Closing Date (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or materially limited, or settlement in
the trading of securities through The Depository Trust Company, Euroclear Bank
S.A./N.V. or Clearstream Banking, S.A. shall have been materially disrupted,
(ii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iii)
there shall have occurred any material outbreak or escalation of hostilities or
other calamity or crisis, including without limitation an act of terrorism, the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Representative, impracticable to market
the Debt Securities or to enforce contracts for the resale of Debt Securities.
9. Pro Rata Purchase in Certain Events. If on the Closing Date
any one or more of the Underwriters shall fail or refuse to purchase Debt
Securities that it or they have agreed to purchase hereunder and the aggregate
amount of Debt Securities that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of Debt Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions which the aggregate
amount of Debt Securities set forth opposite their names in Schedule 2 to this
Agreement bears to the aggregate amount of Debt Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as the Representative may specify, to purchase the Debt Securities that such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Debt
11
Securities and the aggregate amount of Debt Securities with respect to which
such default occurs is more than one-tenth of the aggregate amount of Debt
Securities to be purchased on such date, and arrangements satisfactory to the
Representative and the Corporation for the purchase of such Debt Securities are
not made within 36 hours after such default, this Agreement shall thereupon
terminate without liability on the part of any non-defaulting Underwriters or of
the Corporation. In any such case either the Representative or the Corporation
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement or in any other documents or arrangements may be effected. An action
taken under this Section 9 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. Reimbursement upon Termination in Certain Circumstances. If
this Agreement shall be terminated by the Underwriters or any of them, because
of any failure or refusal on the part of the Corporation to comply in any
material respect with the terms or to fulfill in any material respect any of the
conditions of this Agreement, or if for any reason the Corporation shall be
unable to perform in any material respect its obligations under this Agreement,
the Corporation shall reimburse the Underwriters or such Underwriters as have so
terminated the Agreement, with respect to themselves, severally, for all
reasonable out-of-pocket expenses reasonably incurred by such Underwriters in
connection with the offering of the Debt Securities. In no event shall the
Corporation be liable to the Underwriters for loss of anticipated profits from
the transactions contemplated by this Agreement.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
12
Please confirm that the foregoing correctly sets forth the agreement among the
Corporation and the several Underwriters by having an authorized officer sign a
copy of this Agreement in the space set forth below and by returning the signed
copy to us.
Very truly yours,
M&T BANK CORPORATION
By: ____________________________
Name: __________________________
Title: _________________________
Accepted by:
[REPRESENTATIVE],
as representative of the several
Underwriters named in Schedule 2 hereto
By: ____________________________
Name: __________________________
Title: _________________________
13
SCHEDULE 1
DESCRIPTION OF DEBT SECURITIES
14
SCHEDULE 2
UNDERWRITER AMOUNT
----------- ------
$
TOTAL $
15
SCHEDULE 3
REPRESENTATIVE(S)
16
EXHIBIT A
The opinion of its General Counsel to be delivered by the Corporation pursuant
to Section 4(d) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Corporation is validly organized and presently subsisting under the laws
of the State of New York, with requisite corporate power and authority to own
its properties and conduct its business as described in the Final Prospectus,
except for such power and authority the absence of which would not have a
material adverse effect on the Corporation on a consolidated basis, and the
Corporation is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended.
2. Manufacturers and Traders Trust Company ("M&T Bank") has been duly organized
as a banking corporation under the laws of the State of New York and is existing
in good standing under the laws of the State of New York, with corporate power
and authority to conduct its business as described in the Final Prospectus.
3. The Underwriting Agreement has been duly authorized, executed and delivered
by the Corporation.
4. The Indenture has been duly authorized, executed and delivered by the
Corporation, has been duly qualified under the Trust Indenture Act, and is a
valid and binding agreement of the Corporation, enforceable against the
Corporation in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights, the rights of creditors of federally-insured
depository institutions, the supervisory and enforcement powers of applicable
bank regulatory authorities and general equity principles (whether considered as
a proceeding at law or in equity) and an implied covenant of good faith and fair
dealing.
5. The Debt Securities have been duly and validly authorized, and, when duly
executed, authenticated and delivered pursuant to this Agreement and the
Indenture against payment of consideration therefor in accordance with this
Agreement, such Debt Securities will be valid and legally binding obligations of
the Corporation enforceable in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, the rights of creditors of
federally-insured depository institutions, the supervisory and enforcement
powers of applicable bank regulatory authorities and general equity principles
(whether considered as a proceeding at law or in equity) and will be entitled to
the benefits of the Indenture; the Indenture and the Debt Securities conform in
all material respects to the description thereof contained in the Registration
Statement and the Final Prospectus.
6. No consent, approval, authorization or order of any court or governmental
agency, authority, or body is required for the consummation by the Corporation
of the transactions contemplated by the Underwriting Agreement, except those
that have been obtained; it being understood that I express no opinion as to the
securities or Blue Sky laws of any jurisdiction.
17
7. The issuance and sale of the Debt Securities and the execution, delivery and
performance by the Corporation of the Underwriting Agreement and the Indenture
will not violate the Certificate of Incorporation or Bylaws of the Corporation,
as amended to date, or any material agreement or other instrument known to him
to which the Corporation is a party or any material order or regulation known to
him to be applicable to the Corporation of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Corporation.
8. To the best of my knowledge, there is no pending or threatened action, suit
or proceeding before any court or governmental agency, authority or body or any
arbitrator involving the Corporation or any of its subsidiaries of a character
required to be disclosed in the Registration Statement which is not adequately
disclosed in the Registration Statement and the Final Prospectus, and there is
no franchise, contract or other document of a character required to be described
in the Registration Statement or the Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the statements
included or incorporated in the Registration Statement and the Final Prospectus
describing any legal proceedings or material contracts or agreements relating to
the Corporation fairly summarize such matters.
9. The Registration Statement was declared effective under the Securities Act as
of the date and time specified in such opinion and, to the best of such
counsel's knowledge and information without independent investigation, no stop
order suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings therefor have been initiated or
threatened by the Commission.
Such counsel shall further state that nothing has come to his attention that has
caused him to believe that the Registration Statement, at the time it became
effective (except for the financial statements and schedules and other financial
or statistical data contained or incorporated therein, as to which he need
express no belief), contained any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or that the Final Prospectus (except for the financial
statements and schedules and other financial or statistical data contained or
incorporated therein, as to which he need express no belief), contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
18
