Exhibit 1.4
[Warrants][Units]
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"), __________ [warrants][units] (the "Initial
[Warrants][Units]"). Such Initial [Warrants][Units] 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 [warrants][units] (the "Option
[Warrants][Units]"; together with the Initial [Warrants][Units], the
"[Warrants][Units]") to cover over-allotments. The [Warrants][Units] are
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
[Warrants][Units]. 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 [Warrants][Units] 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
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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
[Warrants][Units]. 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/
(b) The underlying securities, as set forth in the applicable
Final Prospectus, have been duly authorized and reserved for issuance upon
exercise of the [Warrants][Units].
2. Purchase and Sale. 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
[Warrants][Units] set forth opposite such Underwriter's name in Schedule II
hereto.
(a) The initial public offering price and the purchase price of
the Initial [Warrants][Units] 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 IV. 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 [warrant][unit] to be
paid by the several Underwriters for the Initial [Warrants][Units] shall be an
amount equal to the initial public offering price, less an amount per
[warrant][unit] to be determined by agreement among the Representatives and the
Company.
(b) 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 [Warrants][Units] at the
same price per share determined as provided above for the Initial
[Warrants][Units]. The option hereby granted will expire 30 days after the date
of the Pricing
_____________________
/1/ To be included only with respect to issuances involving non-U.S.
distributions.
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Agreement, and may be exercised, in whole or in part (but not more than once),
only for the purpose of covering over-allotments upon notice by the
Representatives to the Company setting forth the number of Option
[Warrants][Units] 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 [Warrants][Units], the Option [Warrants][Units] 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
[Warrants][Units] underwriting obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the Initial
[Warrants][Units] 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 [Warrants][Units] being herein
called the "Closing Date"). Delivery of the Initial [Warrants][Units] 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
[Warrants][Units] 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
[Warrants][Units] are purchased by the Underwriters, delivery and payment for
the Option [Warrants][Units] shall be made at the office specified for delivery
of the Initial [Warrants][Units] 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 [Warrants][Units] 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
[Warrants][Units] 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
[Warrants][Units], 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
[Warrants][Units] shall have become effective, (iii) of
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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 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 [Warrants][Units] 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 [Warrants][Units]
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
[Warrants][Units] 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 [Warrants][Units] and
will arrange for the determination of the legality of the [Warrants][Units] 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
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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 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 [Warrants][Units] 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
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perfected security interest and such counsel is without knowledge of
any other security interests, claims, liens or encumbrances;
(iv) the [Warrants][Units] conform in all material respects to
the description thereof contained in the Final Prospectus;
(v) if the [Warrants][Units] 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 [Warrants][Units] with the [________] Stock Exchange and such
counsel received no information stating that the [Warrants][Units]
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 the Exchange Act and the
respective rules and regulations of the Commission thereunder;
(viii) this Agreement, the [Warrant][Unit] 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;
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(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 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
[Warrants][Units] by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(x) neither the issuance and sale of the [Warrants][Units],
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 issuance and sale of the [Warrants][Units] have been
duly authorized by the Company, and the [Warrants][Units], when
issued and paid for in accordance with this Agreement and the
[Warrant][Unit] Agreement, will (A) be duly and validly issued, (B)
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefit of the [Warrant][Unit] Agreement, and (C) be
exercisable for such underlying securities, currencies or
commodities or, in the case of underlying securities or commodities,
the cash value thereof, as set forth in the applicable Final
Prospectus in accordance with the terms of the [Warrants][Units][;
the underlying securities, as set forth in the applicable Final
Prospectus, have been duly authorized and reserved for issuance upon
exercise of the [Warrants][Units]].
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
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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 or the United States, or the General Corporation Law of the State
of Delaware to the extent deemed proper and 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 Initial
[Warrants][Units], the [Warrant][Unit] 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 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
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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 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
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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;
(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
11
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the
[Warrants][Units] 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.
(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
[Warrants][Units], 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 [Warrants][Units] to the Underwriters, including capital
duties, stamp duties and transfer taxes, if any, payable upon issuance of any of
the [Warrants][Units], the sale of the [Warrants][Units] to the Underwriters and
the fees and expenses of any transfer agent or trustee for the
[Warrants][Units], (iv) the fees and expenses of such 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 [Warrants][Units] 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, (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 [Warrants][Units] 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 [Warrants][Units].
12
7. Conditions to Purchase of Option [Warrants][Units]. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase all
or any portion of the Option [Warrants][Units] 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 [Warrants][Units] 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 [Warrants][Units]:
(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
13
delivery of the [Warrants][Units] as contemplated by the Registration
Statement and the Final Prospectus; and
(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 [Warrants][Units] 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 [Warrants][Units] 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.
14
(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 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
15
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).
(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 [Warrants][Units] 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 [Warrants][Units]) be responsible for any amount
in excess of the underwriting discount applicable to the [Warrants][Units]
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).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the [Warrants][Units] 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 [Warrants][Units]
set forth opposite their names in Schedule II hereto bear to the aggregate
amount of [Warrants][Units] set forth opposite the names of all the remaining
Underwriters) the [Warrants][Units] which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of [Warrants][Units] which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of [Warrants][Units] 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 [Warrants][Units], and if such non-defaulting
Underwriters do not purchase all the [Warrants][Units], 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
16
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 [Warrants][Units], 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
[Warrants][Units].
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 [Warrants][Units]. 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 1007-20-1, Xxxxxxxxx, 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.
17
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.
18
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:
_____________________________
III-1-
SCHEDULE II
Principal Amount of
[Warrants][Units] to
Underwriters be Purchased
III-1-
SCHEDULE III
_________ [Warrants][Units]
BANK OF AMERICA CORPORATION
(a Delaware corporation)
[Warrants][Units]
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 [warrants][units] issued
by 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
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 [warrant][unit]for the
Initial [Warrants][Units], determined as provided in said Section 2, shall be
$__.__.
2. The purchase price per [warrant][unit] for the Initial
[Warrants][Units] 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.
IV-1
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.
IV-2
SCHEDULE A
IV-1
