Exhibit 1.3
[Common Stock]
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Ladies and Gentlemen:
Bank of America Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), __________ shares (the "Initial Shares") of the Company's
common stock (the "Common Stock"). Such Initial Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are listed in
Schedule II opposite the name of each Underwriter. The Company also grants to
the Underwriters, severally and not jointly, the option described in Section
2(c) to purchase up to _____ additional shares (the "Option Shares"; together
with the Initial Shares, the "Shares") of Common Stock to cover over-allotments.
The Common Stock is described more fully in the Final Prospectus, referred to
below. If the firm or firms listed in Schedule II hereto include only the firm
or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer to such firm or
firms.
1. Representations and Warranties.
[(a)] The Company represents and warrants to, and agrees with,
each Underwriter that:
(i) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such form (the file
number of which is set forth in Schedule I hereto), which has
become effective, for the registration under the Act of the Shares.
Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1) under
the Act and complies in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to Rule
424(b) or Rule 434 under the Act a supplement to the form of
prospectus included in such registration statement relating to the
Shares and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with
respect to the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date
of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus";
and such supplemented form of prospectus, including the final
prospectus in preliminary form, in the form in which it shall be filed
with the Commission pursuant to Rule 424(b) or Rule 434 (including the
Basic Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any reference herein to the Registration Statement, the
Basic Prospectus, or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, or the issue date of the Basic Prospectus, or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the
Basic Prospectus, or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference. The Final Prospectus,
if filed by electronic transmission pursuant to the Commission's
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX")
(except as may be permitted by Regulation S-T under the Act), was
identical to the copy thereof delivered to the Underwriters for use in
connection with the offer and sale of the Shares. As of the date
hereof, when the Final Prospectus is first filed with the Commission
pursuant to Rule 424(b) or Rule 434 under the Act, when any supplement
or amendment to the Final Prospectus is filed with the Commission, at
the Closing Date (as hereinafter defined) and, with respect to (i) and
(ii) below, when the Registration Statement became effective, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, will comply
in all material respects with the applicable provisions of the Act and
the Exchange Act and the respective rules and regulations of the
Commission thereunder, (ii) the Registration Statement, as amended as
of any such time, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading,
and (iii) the Final Prospectus, as amended or supplemented as of any
such time, will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement
or the Final Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation
of the Registration Statement and any Final Prospectus. If Rule 434 is
used, the Company will comply with the requirements of Rule 434
applicable to it. The documents which are incorporated by reference in
the Final Prospectus or from which information is so incorporated by
reference, when they were filed with the Commission,
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complied in all material respects with the requirements of the Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder, as applicable, and did not, when such documents were so
filed, contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and any documents so filed and
incorporated by reference subsequent to the effective date of the
Registration Statement, when they were filed with the Commission,
conformed in all material respects with the requirements of the Act,
the Exchange Act and the respective rules and regulations of the
Commission thereunder, as applicable. The Commission has not issued any
stop order suspending the effectiveness of the Registration Statement
or any order preventing or suspending the use of the Final Prospectus
and the Company is without knowledge that any proceedings have been
instituted for either purpose.
[(b) Each Underwriter represents and agrees that it has not and will
not, directly or indirectly, offer, sell or deliver any of the Shares or
distribute the Final Prospectus or any other offering materials relating to the
Shares in or from any jurisdiction except under circumstances that will, to the
best of its knowledge and belief, result in compliance with any applicable laws
and regulations thereof and that, to the best of its knowledge and belief, will
not impose any obligations on the Company except as set forth herein.]/1/
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company the respective number of Initial
Shares set forth opposite such Underwriter's name in Schedule II hereto.
(b) The initial public offering price and the purchase price of the
Initial Shares shall be set forth in a separate written instrument (the "Pricing
Agreement") signed by the Representatives and the Company, the form of which is
attached hereto as Schedule III. From and after the execution and delivery of
the Pricing Agreement, this Agreement shall be deemed to include the Pricing
Agreement. The purchase price per share to be paid by the several Underwriters
for the Initial Shares shall be an amount equal to the initial public offering
price, less an amount per share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations and warranties
contained herein, and subject to the terms and conditions set forth herein, the
Company grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option Shares at the same price per share
determined as provided above for the Initial Shares. The option hereby granted
will expire 30 days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once), only for the purpose of
covering over-
_______________
/1/ To be included only with respect to issuances involving non-U.S.
distributions.
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allotments upon notice by the Representatives to the Company setting forth the
number of Option Shares as to which the several Underwriters are exercising the
option, and the time and date of payment and delivery thereof. Such time and
date of delivery (the "Date of Delivery") shall be determined by the
Representatives but shall not be later than seven full business days after the
exercise of such option and not in any event prior to the Closing Date (as
defined below). If the option is exercised as to all or any portion of the
Option Shares, the Option Shares as to which the option is exercised shall be
purchased by the Underwriters severally and not jointly, in proportion to, as
nearly as practicable, their respective Initial Shares underwriting obligations
as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the Initial Shares
shall be made on the date and at the time specified in the Pricing Agreement,
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereto (such date and time of
delivery and payment for the Initial Shares being herein called the "Closing
Date"). Delivery of the Initial Shares shall be made to the Representatives for
the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Initial Shares shall be in the form set forth in Schedule I
hereto, and such certificates may be deposited with The Depository Trust Company
("DTC") or a custodian for DTC and registered in the name of Cede & Co., as
nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares shall
be made at the office specified for delivery of the Initial Shares in the
Pricing Agreement, or at such other place as the Company and the Representatives
shall determine, on the Date of Delivery as specified in the notice from the
Representatives to the Company. Delivery of the Option Shares shall be made to
the Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Option Shares shall be in the form set forth in Schedule I
hereto, and such certificates shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Shares, the
Company will not file any amendment to the Registration Statement or supplement
to the Basic Prospectus (including the Final Prospectus) unless the Company has
furnished you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 or Rule 434 via XXXXX. The Company will
advise the Representatives promptly (i) when the Final Prospectus shall have
been filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when any
amendment to the Registration Statement relating to the Shares shall have become
effective, (iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final Prospectus or
for any additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
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institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, except with respect to any such delivery
requirement imposed upon an affiliate of the Company in connection with any
secondary market sales, any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules
and regulations thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 60 days
after the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the Act) covering a twelve month
period beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of the
Registration Statement.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Final Prospectus and any amendments thereof and supplements
thereto as the Representatives may reasonably request. The Company will pay the
expenses of printing all documents relating to the offering.
(e) The Company will arrange for the qualification of the Shares for
sale under the laws of such jurisdictions as the Representatives may reasonably
designate, will maintain such qualifications in effect so long as required for
the distribution of the Shares and will arrange for the determination of the
legality of the Shares for purchase by institutional investors; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or announce
the offering of, any securities covered by the Registration Statement or by any
other registration statement filed under the Act; provided, however, the Company
may, at any time, offer or sell or announce the offering of any securities (A)
covered by a registration statement on Form S-8 or (B) covered by a registration
statement on Form S-3 and (i) pursuant to which the Company issues securities
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under one of the Company's medium-term note programs (including, without
limitation, the Company's InterNotes program) or (ii) pursuant to which the
Company issues securities for its dividend reinvestment plan.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Shares shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the filing
of any document incorporated by reference therein) and as of the Closing Date,
to the accuracy of the statements of the Company made in any certificates
furnished pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed with the Commission within the time
period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Xxxxx Mulliss & Wicker, PLLC, counsel for the Company, dated the
Closing Date, to the effect of paragraphs (i) and (iv) through (xii) below, and
the opinion of Xxxx X. Xxxxxxx, General Counsel to the Company (or such other
attorney, reasonably acceptable to counsel to the Underwriters, who exercises
general supervision or review in connection with a particular securities law
matter for the Company), dated the Closing Date, to the effect of paragraphs
(ii) and (iii) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; Bank of America,
N. A. (the "Principal Subsidiary Bank") is a national banking
association formed under the laws of the United States and
authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank
is qualified or licensed to do business as a foreign corporation
in any jurisdiction in which such counsel has knowledge that the
Company or the Principal Subsidiary Bank, as the case may be, is
required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of the
Principal Subsidiary Bank have been duly and validly authorized
and issued and are fully paid and (except as provided in 12 U.S.C.
(S) 55, as amended) nonassessable, and, except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
stock of the Principal Subsidiary Bank (except directors'
qualifying shares) are owned, directly or indirectly, by the
Company free and clear of any perfected security interest and,
such counsel is without knowledge of any other security interests,
claims, liens or encumbrances;
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(iv) the Shares conform in all material respects to the
description thereof contained in the Final Prospectus;
(v) if the Shares are to be listed on the [______] Stock
Exchange, authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all required
supporting documents with respect to the Shares with the [________]
Stock Exchange and such counsel received no information stating that
the Shares will not be authorized for listing, subject to official
notice of issuance and evidence of satisfactory distribution;
(vi) such counsel is without knowledge that (1) there is
any pending or threatened action, suit or proceeding before or by any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement or the Final
Prospectus which is omitted or not adequately disclosed therein, or
(2) any franchise, contract or other document of a character required
to be described in the Registration Statement or Final Prospectus, or
to be filed as an exhibit to the Registration Statement, is not so
described or filed as required;
(vii) the Registration Statement has become effective under
the Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and, to such counsel's
knowledge, no proceeding for that purpose has been instituted or
threatened; and the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical information
contained therein or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules and regulations of the
Commission thereunder;
(viii) this Agreement and the Pricing Agreement have been
duly authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement of
remedies, and except insofar as the enforceability of the indemnity
and contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further subject to
12 U.S.C. (S) 1818(b)(6)(D) and similar bank regulatory powers and to
the application of principles of public policy;
(ix) no consent, approval, authorization or order of any
court or governmental agency or body is necessary or required on
behalf of the Company for the consummation of the transactions
contemplated herein, except such as
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have been obtained under the Act and such as may be required under
the blue sky or insurance laws of any jurisdiction in connection
with the purchase and distribution of the Shares by the
Underwriters and such other approvals (specified in such opinion)
as have been obtained;
(x) neither the issuance and sale of the Shares, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result
in a breach of, or constitute a default under the certificate of
incorporation or by-laws of the Company or (1) the terms of any
indenture or other material agreement or instrument known to such
counsel and to which the Company or the Principal Subsidiary Bank
is a party or bound, or (2) any order, law or regulation known to
such counsel to be applicable to the Company or the Principal
Subsidiary Bank of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
the Company or the Principal Subsidiary Bank;
(xi) such counsel is without knowledge of any rights to the
registration of securities of the Company under the Registration
Statement which have not been waived by the holders of such rights
or which have not expired by reason of lapse of time following
notification of the Company's intention to file the Registration
Statement; and
(xii) the Initial Shares, any Option Shares as to which the
option granted in Section 2 has been exercised and the Date of
Delivery determined by the Representatives to be the same as the
Closing Date, have been duly authorized and, when paid for as
contemplated herein, will be duly issued, fully paid and
nonassessable.
In rendering such opinion, but without opining in connection therewith,
such counsel also shall state that, although it expresses no view as to portions
of the Registration Statement consisting of financial statements and other
financial, accounting and statistical information and it has not independently
verified, is not passing upon and assumes no responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Final Prospectus or any amendment or supplement thereto (other than
as stated in (iv) above), it has no reason to believe that such remaining
portions of the Registration Statement or any amendment thereto at the time it
became effective and as of the date of such opinion contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that, subject to the foregoing with respect to financial statements and other
financial, accounting and statistical information, the Final Prospectus, as
amended or supplemented, as of its date and as of the date of such opinion
contained or 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 light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
North Carolina, the United States, or the General Corporation Law of the State
of Delaware to the extent deemed proper and
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specified in such opinion, upon the opinion of counsel to the Underwriters, or
upon the opinion of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters; and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible officers of
the Company and its subsidiaries and public officials.
(c) The Representatives shall have received from Stroock & Stroock &
Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Shares, the Pricing
Agreement, the Registration Statement, the Final Prospectus and any other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board, Chief Executive Officer or
a Senior Vice President, and the principal financial or accounting officer of
the Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this
Agreement are not true and correct on and as of the Closing Date with the
same force and effect as though expressly made at and as of the Closing
Date and the Company has not performed or complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration
Statement has been issued or any proceedings for that purpose have been
instituted or threatened by the Commission; and
(iii) since the date of the most recent financial statements included
in the Final Prospectus, there has been any material adverse change or any
development involving a prospective material adverse change in the
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that the response, if any, to Item 10 of the Registration Statement
is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial statements of the
Company and its subsidiaries audited by them and included or incorporated
by
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reference in the Registration Statement and Final Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act and the rules and regulations of the Commission
thereunder with respect to registration statements on Form S-3 and the
Exchange Act and the regulations thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the
stockholders, the board of directors, executive committee and
audit committee of the Company and the boards of directors and
executive committees of its subsidiaries as set forth in the
minute books through a specified date not more than five
business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Accounting Standards No. 71, Interim Financial Information, on
the unaudited condensed consolidated interim financial
statements of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration
Statement and Final Prospectus and reading the unaudited
interim financial data, if any, for the period from the date of
the latest balance sheet included or incorporated by reference
in the Registration Statement and Final Prospectus to the date
of the latest available interim financial data; and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding the specific items for which representations
are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of
the Exchange Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Final Prospectus, for
them to be in conformity with generally accepted
accounting principles;
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(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five
business days prior to the date of the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such
debt) or any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated basis as
compared with the amounts shown in the latest balance sheet
included or incorporated by reference in the Registration
Statement and the Final Prospectus or (ii) for the period
from the date of the latest available financial data to a
specified date not more than five business days prior to the
delivery of such letter, there was any change in the capital
stock or the long-term debt (other than scheduled repayments
of such debt) or any decreases in shareholders' equity of
the Company and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases which the
Registration Statement and Final Prospectus discloses have
occurred or may occur, or PricewaterhouseCoopers LLP shall
state any specific changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers LLP
has carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and Final Prospectus and which are specified by
the Representatives and agreed to by PricewaterhouseCoopers LLP, and
has found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of
the Company and its subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, PricewaterhouseCoopers
LLP shall have furnished to the Representatives a letter or letters, dated the
date of this Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph (e) and in Schedule I
hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall not
have been (i) any change or decrease specified in the letter or letters referred
to in paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
other), earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the delivery of the
Shares as contemplated by the Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
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(h) There shall not have come to the Representatives' attention any
facts that would cause the Representatives to believe that the Final Prospectus,
at the time it was required to be delivered to a purchaser of the Shares,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Payment of Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment or supplement thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including capital duties, stamp
duties and transfer taxes, if any, payable upon issuance of any of the Shares,
the sale of the Shares to the Underwriters and the fees and expenses of any
transfer agent or trustee for the Shares, (iv) the fees and expenses of counsel
to any such transfer agent or trustee, (v) the fees and disbursements of the
Company's counsel and accountants, (vi) the qualification of the Shares under
state securities laws in accordance with the provisions of Section 4(e),
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any Blue Sky Survey, (vii) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto and of the Final Prospectus and any amendments or supplements thereto,
(viii) the printing and delivery to the Underwriters of copies of any Blue Sky
Survey, and (ix) the fees of the National Association of Securities Dealers,
Inc., [and, (x) if applicable, the fees of the ____________ Stock Exchange.]
If the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in Section 5
hereof is not satisfied or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares.
12
7. Conditions to Purchase of Option Shares. In the event the Underwriters
exercise the option granted in Section 2(c) hereof to purchase all or any
portion of the Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for the Option
Shares that they shall have respectively agreed to purchase hereunder are
subject to the accuracy of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and any
required filing of the Final Prospectus pursuant to Rule 424(b) or Rule 434
under the Act shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall have received,
each dated the Date of Delivery and relating to the Option Shares:
(i) the favorable opinion of Xxxxx Mulliss & Wicker, PLLC,
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, to the same effect as the opinion required by
Section 5(b);
(ii) the favorable opinion of Xxxx X. Xxxxxxx, Esq., General
Counsel to the Company, in form and substance satisfactory to counsel
for the Underwriters, to the same effect as the opinion required by
Section 5(b);
(iii) the favorable opinion of Stroock & Stroock & Xxxxx LLP,
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(c);
(iv) a certificate, of the Chairman of the Board and Chief
Executive Officer or Senior Vice President of the Company and of the
principal financial or accounting officer of the Company with respect
to the matters set forth in Section 5(d);
(v) a letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to the Underwriters, substantially the same in
scope and substance as the letter furnished to the Underwriters
pursuant to Section 5(e) except that the "specified date" in the letter
furnished pursuant to this Section 7(b)(v) shall be a date not more
than five days prior to the Date of Delivery;
(vi) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (b)(v) of this Section 7 or (ii)
any change, or any development involving a prospective change, in or
affecting the earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Shares as
contemplated by the Registration Statement and the Final Prospectus;
and
13
(vii) such other information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Date of Delivery by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or arise out of or are based upon
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Final Prospectus, or any amendment or
supplement thereof, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in the
Registration Statement or Final Prospectus or any amendment or supplement
thereof, and (ii) such indemnity with respect to the Basic Prospectus or the
Final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Shares which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such Shares
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Basic
Prospectus or any preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange
14
Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the Registration Statement or
Final Prospectus or any amendment or supplement thereof. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that (i) the names of the Underwriters
and the statements required by Item 508 of Regulation S-K set forth in the
language on the cover page or under the heading "Underwriting" or "Plan of
Distribution," (ii) the sentences relating to concessions and reallowances, and
(iii) the paragraph related to stabilization and syndicate covering transactions
in the Final Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in the Registration
Statement or Final Prospectus or any amendment or supplement thereto, and the
Representatives confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel), approved by the Representatives
in the case of subparagraph (a), representing the indemnified parties under
subparagraph (a) who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
15
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Shares specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Shares) be responsible for any amount in excess
of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
16
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Shares set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Shares, and
if such non-defaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any non-defaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any non-defaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Shares, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such exchange, or (ii)
a banking moratorium or a material disruption in the commercial banking or
securities settlement or clearance services in the United States shall have been
declared by Federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis (in the United States or elsewhere) the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Shares.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Shares. The provisions of Section 6 and
8 hereof and this Section 11 shall survive the termination or cancellation of
this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attn: Xxxxx X. Xxxxxxxxx; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Bank of America
Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
attention of the Secretary, with a copy to each of: Bank of America Corporation,
Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, XX
0000-00-0, Xxxxxxxxx,
00
Xxxxx Xxxxxxxx 00000, Attn: Xxxx X. Xxxxxxx, General Counsel; and Xxxxx Mulliss
& Wicker, PLLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn:
Xxxx X. Xxxxxxxx, Xx.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
18
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
BANK OF AMERICA CORPORATION
By: _________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: [Name of Representatives]
By: __________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
19
SCHEDULE I
Underwriting Agreement dated ___________, 200_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Shares:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts: ________________
Additional items to be covered by the letter
from PricewaterhouseCoopers LLP delivered
pursuant to Section 5(e) at the
time this Agreement is executed:
_______________________
20
SCHEDULE II
Principal Amount of
Initial Shares to
Underwriters be Purchased
21
SCHEDULE III
_________ Shares
BANK OF AMERICA CORPORATION
(a Delaware corporation)
Common Stock
PRICING AGREEMENT
[Date]
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated _____________ __,
___ (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule I thereto, for whom you are acting as
representatives (the "Representatives"), of the above shares of Common Stock
(the "Initial Shares"), of Bank of America Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 9:30 A.M., New York City time, on __________
__, 199_ at the offices of Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx XXX,
Xxx Xxxx, Xxx Xxxx 00000.
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with each Underwriter as follows:
1. The initial public offering price per share for the Initial Shares,
determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be paid by the
several Underwriters shall be $__.__, being an amount equal to the initial
public offering price set forth above less $_.__ per share.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_____________________
Name:
Title:
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
23
SCHEDULE A
24
