EXHIBIT 1.1
PRICING AGREEMENT
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January 23, 2003
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx XX0X 0X0
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston International
c/o Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Bank of New York Company, Inc., a New York corporation (the
"Company"), has entered into forward stock purchase transactions with each of
Xxxxxxx Xxxxx International, with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("ML") acting as agent for the parties, and Credit Suisse First
Boston International, with Credit Suisse First Boston LLC ("CSFB") acting as
agent for the parties, as set forth in separate letter agreements dated the date
hereof (each, a "Confirmation"), copies of which are attached as Exhibit A. In
connection therewith, the Company understands that ML and CSFB, severally and
not jointly, will effect sales of a number of shares of the Company's common
stock, par value $7.50 per share (the "Hedge Shares"), including a preferred
stock purchase right for each such share pursuant to a rights agreement dated as
of December 10, 1985, as amended, between the Company and The Bank of New York,
as rights agent, equal to the applicable initial Base Amount (as defined in each
Confirmation). The sale of the Hedge Shares by ML and CSFB shall be subject to
the terms and conditions stated herein and in the Underwriting Agreement
Standard Provisions (August 2002) (the "Standard Provisions").
Except as set forth in Schedule I attached hereto, (i) each of the
provisions of the Standard Provisions is incorporated herein by reference in its
entirety and shall be deemed to be a part of this Pricing Agreement to the same
extent as if such provisions had been set forth in full herein, (ii) for
purposes of the Standard Provisions, the Hedge Shares shall be deemed to be
Designated Securities that are being issued and sold by the Company (with the
relevant
provisions of the Standard Provisions modified appropriately, to reflect the
fact that the Hedge Shares are currently outstanding securities) and (iii) each
of the representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement and the Effective Date
(as defined in each Confirmation). Each reference to the Representatives and the
Underwriters herein and in the provisions of the Standard Provisions so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Standard Provisions are used herein as
therein defined.
A supplement to the Prospectus relating to the Designated Securities,
in the form heretofore delivered to ML and CSFB, is now proposed to be filed
with the Commission. The Company understands that ML and CSFB will deliver such
supplement to the Prospectus in connection with the sale of the Hedge Shares by
ML and CSFB.
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If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon acceptance hereof by you,
this letter and such acceptance hereof, including the provisions of the Standard
Provisions incorporated herein by reference, shall constitute a binding
agreement between you and the Company.
Very truly yours,
The Bank of New York Company, Inc.
By:/s/ Xxxxx Xxx Xxxx
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Name: Xxxxx Xxx Xxxx
Title: Senior Executive Vice
President and Chief
Financial Officer
Accepted as of the date hereof:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:/s/ Xxxxxxxx Xxxxx
----------------------------
Name: Xxxxxxxx Xxxxx
Title:
Xxxxxxx Xxxxx INTERNATIONAL
By:/s/ Xxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title:
Credit Suisse First Boston LLC
By:/s/ Xxx X. Xxxxxxx
----------------------------
Name: Xxx X. Xxxxxxx
Title: Managing Director
Credit Suisse First Boston INTERNATIONAL
By:/s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Credit Suisse First Boston International
By:/s/ Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director, Legal and
Compliance Department
SCHEDULE I
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The Standard Provisions shall be modified as follows:
1. Pursuant to Section 2(a) of the Standard Provisions, the file
numbers relating to the Initial Registration Statement are 333-89586,
000-00000-00, 000-00000-00, 000-00000-00 and 000-00000-00.
2. Section 2(j) of the Standard Provisions is amended and restated as
follows: "The execution and delivery of the Pricing Agreement and each
Confirmation, the issuance and delivery of the Settlement Shares on each
Settlement Date (each such term as defined in the applicable Confirmation) and
the compliance by the Company with all of the provisions of the Pricing
Agreement and each Confirmation and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
(i) any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (ii)
the Certificate of Incorporation or By-laws of the Company or the charter or
by-laws of any of its subsidiaries or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their respective properties
except, in the case of clauses (i) and (iii), any such conflict, breach or
violation that would not have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries,
considered as a whole, or on the distribution of the Designated Securities; and
no consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the execution
and delivery of the Pricing Agreement and each Confirmation, the issuance and
delivery of the Settlement Shares on each Settlement Date or the consummation by
the Company of the transactions contemplated by the Pricing Agreement or each
Confirmation, except such as have been, or will have been prior to the Time of
Delivery (as defined in Section 4 hereof), obtained under the Act, and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection with the
distribution of the Designated Securities by the Underwriters."
3. New Section 2(p) shall be added to the Standard Provisions as
follows:
(p) Each Confirmation has been duly authorized, executed and delivered
by the Company and it constitutes a valid and legally binding instrument of the
Company enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equitable principles; and each Confirmation will conform in all
material respects to the description thereof in the Prospectus as amended or
supplemented with respect to the Designated Securities.
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4. Sections 3 and 4 of the Standard Provisions are deleted in their
entirety. For purposes of determining the "Time of Delivery" relating to the
Designated Securities for the representations, warranties, covenants and
conditions set forth in the Standard Provisions, such term shall mean 10:00
a.m., New York time, January 29, 2003, at the offices of Pillsbury Winthrop LLP.
5. Section 5(f) of the Standard Provisions is amended and restated as
follows: "During a period of 60 days from the date of the Pricing Agreement
relating to the Designated Securities, the Company will not, without the prior
written consent of the Representatives, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of Common Stock, whether any such swap or transaction
is to be settled by delivery of Common Stock or other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) issuances of shares of
Common Stock in satisfaction of the Company's obligations under the
Confirmations, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date of the Pricing Agreement relating to the Designated Securities, (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to employee benefit plans of the Company (including any employee stock
option, profit sharing or thrift plans or the Company's Dividend Reinvestment
and Stock Purchase Plan), (D) any shares of Common Stock issued pursuant to any
non-employee director stock plan or dividend reinvestment plan in effect on the
date of the Pricing Agreement relating to the Designated Securities or (E) the
filing by the Company of a "shelf" registration statement with the Commission
registering up to $2,174,000,000 aggregate initial offering price of the
Company's securities, including the Common Stock."
6. The first paragraph of Section 7 of the Standard Provisions is
amended and restated to read as follows: "The obligations of the Underwriters
under each Confirmation shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Company in or incorporated by reference in the Pricing
Agreement relating to the Designated Securities are, at and as of the Time of
Delivery, true and correct, the condition that the Company shall have performed
all of its obligations hereunder and thereunder theretofore to be performed, and
the following additional conditions:"
7. The first paragraph of Section 7(c) of the Standard Provisions is
amended and restated as follows: "Xxxx Xxxxxxxx, Senior Counsel of The Bank of
New York, or other counsel designated by the Company reasonably acceptable to
the Representatives, shall have furnished to the Representatives such written
opinion or opinions to the effect of paragraphs (1) through (4), paragraphs
(5)(v) and (5)(vi) (it being understood that such paragraph (5)(vi) shall also
relate to each Confirmation) and paragraphs (7) and (8) below and Xxxxxxxx &
Xxxxxxxx LLP, special counsel to the Company, shall have furnished to the
Representatives such written opinion or opinions to the effect of paragraphs (1)
through (4), and paragraphs (7) and (8) below, in each case, dated the Time of
Delivery for such Designated Securities and, in each case, in form and substance
satisfactory to the Representatives:"
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8. New Sections 7(c)(7) and 7(c)(8) shall be added to the Standard
Provisions as follows:
(7) Each Confirmation has been duly authorized, executed and
delivered by the Company.
(8) The shares of Common Stock to be issued pursuant to each
Confirmation have been duly authorized and reserved for issuance and, when
issued upon settlement of such Confirmation in accordance with the terms
thereof, such shares will be validly issued, fully paid and non-assessable. It
is understood and agreed that counsel, in rendering this opinion, may assume
that, at the time of the issuance, sale and delivery of such shares, (i) the
authorization of such shares will not have been modified or rescinded and such
shares will conform to the specimen examined by such counsel and (ii) there will
not have occurred any change in law affecting the validity of such shares. In
addition, such counsel may assume that the issuance, sale and delivery of such
shares will comply with then applicable law and with each requirement or
restriction then imposed by any court or governmental body having jurisdiction
over the Company and will not result in a default under or a breach of any
agreement or instrument then binding on the Company.
9. Section 7(j) of the Standard Provisions is amended and restated as
follows: "On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading of the Common Stock or in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; or (iii) an outbreak or
escalation of hostilities or the declaration by the United States of a national
emergency or war or other calamity or crisis or change in financial, political
or economic conditions in the United States or elsewhere having an adverse
effect on the financial markets of the United States, if the effect of any such
event specified in this clause (iii) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to the
Designated Securities."
10. The reference to "the total net proceeds from the offering (before
deducting expenses) received by the Company" in the third sentence of Section
8(d) of the Standard Provisions shall be deemed to refer to the total Settlement
Amount (as defined in each Confirmation) received or to be received by the
Company as of the Maturity Date (as defined in each Confirmation) under each
Confirmation.
11. Section 9 of the Standard Provisions is deleted in its entirety.
12. All references to "Xxxxxxxx & Xxxxxxxx" in the Standard Provisions
shall be changed to "Xxxxxxxx & Xxxxxxxx LLP".
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EXHIBIT A
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[See Exhibits 1.2 and 1.3]
A-1
