Exhibit 1.1
American Express Company Capital Trust I
American Express Company Capital Trust II
Capital Securities
guaranteed to the extent set forth in the Guarantees by
AMERICAN EXPRESS COMPANY
Underwriting Agreement
----------------------
____ __, 199_
To the Representatives of the several Underwriters
named in Schedule I to the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time American Express Company Capital Trust I or American
Express Company Capital Trust II, each a statutory business trust formed under
the laws of the State of Delaware (each a "Trust" and collectively, the
"Trusts"), and American Express Company, a New York corporation (the "Company"),
as depositor of each trust and as guarantor, propose to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, that the Trust
identified in the applicable Pricing Agreement (such Trust being the "Designated
Trust" with respect to such Pricing Agreement) issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
representing undivided beneficial interests in the assets of the Designated
Trust. The Securities specified in such Pricing Agreement are referred to as
the "Firm Designated Securities" with respect to such Pricing Agreement. If
specified in such Pricing Agreement, the Designated Trust may grant the
Underwriters the right to purchase at their election an additional number of
Securities, specified as provided in such Pricing Agreement as provided in
Section 3 hereof (the "Optional Designated Securities"). The Firm Designated
Securities and any
Optional Designated Securities are collectively called the "Designated
Securities." The proceeds of the sale of the Designated Securities to the public
and of common securities of the Designated Trust (the "Common Securities") to
the Company concurrently with the sale of the Designated Securities are to be
invested in junior subordinated deferrable interest debentures of the Company
(the "Subordinated Debentures") identified in the Pricing Agreement with respect
to such Designated Securities (with respect to such Pricing Agreement, the
"Designated Subordinated Debentures"), to be issued pursuant to a junior
subordinated indenture to be dated as of June __, 1998 (the "Indenture") between
the Company and Bankers Trust Company as trustee (the "Indenture Trustee"). The
Designated Securities may be exchangeable into Designated Subordinated
Debentures, as specified in Schedule II to such Pricing Agreement. The
Designated Securities will be guaranteed by the Company to the extent set forth
in the Pricing Agreement with respect to such Designated Securities (the
"Designated Guarantee") (all such Designated Guarantees together, the
"Guarantees").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement identified in such Pricing
Agreement (with respect to such Pricing Agreement, the "Trust Agreement").
1. Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Designated Securities, for whom the firms designated as
representatives of the Underwriters of such Designated Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. This Underwriting Agreement shall not
be construed as an obligation of either Trust to sell any of the Securities or
as an obligation of any of the Underwriters to purchase any of the Securities.
The obligation of either Trust to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate number of
the Firm Designated Securities, the maximum number of Optional Designated
Securities, if any, the initial public offering price of such Firm and Optional
Designated Securities or the manner of determining such price, the terms of the
Designated Securities, including the terms on which and terms of the securities
into which the Designated Securities will be exchangeable, the purchase price to
the Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, the number of such Designated Securities to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
Designated Securities and such Optional Designated Securities, if any, and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the registration statement and prospectus with respect thereto) the
terms of such Designated Securities. A Pricing Agreement shall be in the form of
an executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The standard
provisions set forth herein
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will be incorporated by reference in any Pricing Agreement. The obligations of
the Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Designated Trust and the Company, jointly and severally, each
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-[ ]) (the
"Initial Registration Statement") in respect of the Securities, the
Subordinated Debentures and the Guarantees (including the Designated
Securities, the Designated Subordinated Debentures and the Designated
Guarantees) has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to such registration
statement, but including all documents incorporated by reference in the
prospectus included therein, to the Representatives for each of the other
Underwriters has been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed, or transmitted for filing, with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to Rule
424(a) under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including (i) the information contained in
the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes effective,
(ii) all exhibits thereto and (iii) the documents incorporated by reference
in the prospectus contained in the registration statement at the time such
part of the registration statement became effective but excluding Forms T-1,
each as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration Statement";
the prospectus relating to the Securities, the Subordinated Debentures and
the Guarantees, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may
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be, under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of either Trust, if any, and the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or supplemented
shall be deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Designated Trust or the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus
will conform, in all material respects to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Designated Trust or the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Company nor any of the Company's subsidiaries has
sustained since the date of the latest audited financial statements included
or incorporated by reference in the
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Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, other than
any such loss or interference that would not have a material adverse effect
on or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any material change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any material adverse change in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(e) The Designated Trust has been duly created and is validly existing as
a business trust in good standing under the laws of the State of Delaware,
with power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus; the Company has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the State of New York, with power and authority (corporate and
other) to own, lease and operate its properties and conduct its business as
described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable; all the outstanding beneficial interests in the Designated Trust
have been duly and validly authorized and issued, are fully paid and non-
assessable and conform to the descriptions thereof contained in the
Prospectus;
(g) Each of American Express Travel Related Services Company, Inc.,
American Express Financial Corporation and American Express Bank Ltd. (the
"Significant Subsidiaties"), has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has power and authority (corporate and other) to own,
lease and operate its properties and to conduct its business as described in
the Prospectus, and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
or be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries taken as a whole; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and all such
shares owned by the Company, directly or through subsidiaries, are owned free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or security.
(h) The Designated Securities have been duly and validly authorized, and,
when the Firm Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and, in the case of any Optional
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Designated Securities, pursuant to Over-allotment Options (as defined in
Section 3 hereof) with respect to such Securities, such Designated Securities
will be duly and validly issued and fully paid and non-assessable beneficial
interests in the Designated Trust entitled to the benefits provided by the
applicable Trust Agreement, which will be substantially in the form filed as
an exhibit to the Registration Statement; the Designated Securities conform
to the description thereof contained in the Registration Statement and the
Designated Securities will conform to the description thereof contained in
the Prospectus as amended or supplemented with respect to such Designated
Securities;
(i) The holders of the Designated Securities (the "Securityholders") will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware;
(j) The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the Company, as depositor of
the Designated Trust, and upon delivery by the Designated Trust to the
Company against payment therefor as set forth in the Trust Agreement, will be
duly and validly issued and non-assessable beneficial interests in the
Designated Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Securities of the Designated Trust is
not subject to preemptive or other similar rights; the Common Securities
conform to the description thereof contained in the Registration Statement;
and at each Time of Delivery (as defined in Section 4 hereof), all of the
issued and outstanding Common Securities of the Designated Trust will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(k) The Designated Guarantee, the Agreement as to Expenses and Liabilities
between the Company and the Designated Trust set forth in the Pricing
Agreement (the "Designated Expense Agreement") (all such Designated Expense
Agreements together, the "Expense Agreements") the Trust Agreement for the
Designated Trust, the Designated Subordinated Debentures and the Indenture
(the Designated Guarantee, the Designated Expense Agreement, such Trust
Agreement, the Designated Subordinated Debentures and the Indenture being
collectively referred to as the "Company Agreements") have each been duly
authorized and when validly executed and delivered by the Company and, in the
case of the Designated Guarantee, by the Guarantee Trustee (as defined in the
Guarantee), in the case of the Designated Expense Agreement, by the
Designated Trust, in the case of the Trust Agreement, by the Trustees (as
defined in the Trust Agreement) and, in the case of the Indenture, by the
Indenture Trustee, and, in the case of the Company Subordinated Debentures,
when validly issued by the Company and duly authenticated and delivered by
the Indenture Trustee, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; the Trust Agreement, the Indenture
and the Designated Guarantee have each been duly qualified under the Trust
Indenture Act; the Designated Subordinated Debentures are entitled to the
benefits of the Indenture; and the Company Agreements, which will be in
substantially the form filed as exhibits to the Registration Statement, will
conform to the
6
descriptions thereof in the Prospectus as amended or supplemented with
respect to the Designated Securities to which they relate;
(l) The issue and sale of the Designated Securities by the Designated
Trust, the compliance by the Designated Trust with all of the provisions of
this Agreement, any Pricing Agreement and each Over-allotment Option, if any,
the Designated Securities, the Designated Expense Agreement and the Trust
Agreement, the purchase of the Designated Subordinated Debentures by the
Designated Trust, the execution, delivery and performance by the Designated
Trust of the Trust Agreement and the consummation of the transactions
contemplated herein and therein will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Trust is a party or by which such Trust
is bound or to which any of the property or assets of such Trust is subject,
nor will such action result in any violation of the provisions of the Trust
Agreement or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Trust or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities and the Common
Securities by such Trust, the purchase of the Subordinated Debentures by the
such Trust or the consummation by such Trust of the transactions contemplated
by this Agreement, the Pricing Agreement or any Over-allotment Option, the
Designated Expense Agreement or the Trust Agreement, except such as have
been, or will have been, prior to each Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(m) The issuance by the Company of the Guarantees and the Subordinated
Debentures, the compliance by the Company with all of the provisions of this
Agreement, any Pricing Agreement and each Over-allotment Option, if any, the
Guarantees, the Expense Agreements, the Subordinated Debentures, the Trust
Agreements and the Indenture, the execution, delivery and performance by the
Company of the Company Agreements, and the consummation of the transactions
contemplated herein and therein will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any 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, other than any such conflict, breach or violation that would not
have a material adverse effect on or affecting the general affairs,
management, financial position, shareholders' equity or results of operations
of the Company and its subsidiaries taken as a whole, nor will such action
result in any violation of the provisions of the Restated Certificate of
Incorporation or By-Laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court
or governmental agency or body is required for the issue of the Guarantees or
the Subordinated Debentures or the consummation by the Company of the other
transactions contemplated by this Agreement, any Pricing Agreement or the
7
Company Agreements, except such as have been or will have been, prior to each
Time of Delivery, obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
issuance by the Company of the Guarantees and the Subordinated Debentures;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Designated Trust, the Company
or any of its subsidiaries is a party or of which any of their properties is
the subject, which, if determined adversely to the Designated Trust, the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the
Designated Trust, the Company and its subsidiaries taken as a whole; and, to
the best of the Designated Trust's and the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(o) None of the Designated Trust, the Company nor any of its subsidiaries,
as applicable, is in violation of the Trust Agreement for the Designated
Trust, the Certificate of Trust for the Designated Trust, the Restated
Certificate of Incorporation or By-Laws of the Company, or the charter or by-
laws of any of its subsidiaries or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, other than any such violation or default that
would not have a material adverse effect on or affecting the general affairs,
management, financial position, shareholders' equity or results of operations
of the Company and its subsidiaries taken as a whole;
(p) The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated
by them, except where the failure to possess such certificates, authorities
or permits would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the Company
and its subsidiaries taken as a whole; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings or business affairs of the Company
and its subsidiaries taken as a whole;
(q) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of their
operations for the periods specified; and, except as stated therein, said
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis;
8
(r) The statements set forth in (i) the Prospectus under the captions
"Description of Junior Subordinated Debentures", "Description of Capital
Securities", "Description of Guarantees", "The Expense Agreements" and
"Relationship Among the Capital Securities, the Corresponding Junior
Subordinated Debentures, the Expense Agreements and the Guarantees", and (ii)
in the Prospectus as amended or supplemented under the captions "Certain
Terms of Capital Securities", "Certain Terms of Subordinated Debentures" and
"Certain Terms of Guarantee", insofar as they constitute a summary of the
terms of the Securities, Subordinated Debentures, the Guarantee, the Expense
Agreement and the Company Agreements (including the Designated Securities,
the Designated Subordinated Debentures, the Designated Guarantees and the
Designated Expense Agreements), and (x) in the Prospectus under the caption
"Plan of Distribution" and (y) in the Prospectus as amended or supplemented
under the caption "Underwriting", insofar they purport to describe the
provisions of the laws and documents referred to therein, in each case are
accurate, complete and fair;
(s) Neither the Designated Trust nor the Company is or, after giving
effect to the offering and sale of the Securities, will be, an "investment
company" or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(t) Ernst & Young LLP, who have certified certain financial statements of
the Company and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder; and
(u) The Pricing Agreement with respect to the Designated Securities
(incorporating the provisions hereof) and this Agreement each have been duly
authorized, executed and delivered by the Company and the Designated Trust.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of the Firm
Designated Securities, the several Underwriters propose to offer the Firm
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable to any
Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised by written notice from the Representatives to the Designated Trust and
the Company, given within a period specified in the Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives, the
Designated Trust and the Company otherwise agree in writing, earlier than or
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
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The number of Optional Designated Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase.
As compensation to the Underwriters of the Designated Securities for their
commitments hereunder and under the Pricing Agreement, and in view of the fact
that the proceeds of the sale of the Designated Securities will be used by the
Designated Trust to purchase the Designated Subordinated Debentures of the
Company, the Company agrees to pay at each Time of Delivery to Xxxxxxx, Xxxxx &
Co., for the accounts of the several Underwriters, the amount set forth in the
Pricing Agreement per capital security for the Designated Securities to be
delivered at each Time of Delivery.
4. Certificates for the Firm Designated Securities and the Optional
Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least two business days' prior notice to
the Designated Trust and the Company, shall be delivered by or on behalf of the
Designated Trust to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of Federal (same day) Funds to an account designated
by the Designated Trust, (i) with respect to the Firm Designated Securities, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives, the
Designated Trust and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Designated Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives,
the Designated Trust and the Company may agree upon in writing, such time and
date, if not the First Time of Delivery, being herein called the "Second Time of
Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Designated Trust and the Company, jointly and severally, agree with
each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to
such Designated Securities in a form approved by the Representatives and to
file such Prospectus
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pursuant to Rule 424(b) under the Act not later than the Commission's close
of business on the second business day following the execution and delivery
of the Pricing Agreement relating to the Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make no
further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing Agreement
relating to such Securities and prior to any Time of Delivery for such
Securities which shall be disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after any Time
of Delivery for the Designated Securities and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Designated Trust or the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Designated Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of the Designated Securities or the Designated Subordinated
Debentures for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Designated Securities or the
Designated Subordinated Debentures for offering and sale under the securities
laws of such jurisdictions as the Representatives may reasonably request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Designated Securities, provided that in
connection therewith neither the Designated Trust nor the Company shall be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day
next succeeding the date of the Pricing Agreement for such Designated
Securities or some other day as agreed by the Company and the Underwriters
and from time to time thereafter, to furnish the Underwriters with copies of
the Prospectus in New York City as amended or supplemented in such quantities
as the Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale of
the Designated Securities or the Designated Subordinated Debentures and if at
such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made
11
when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) In the case of the Company, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing Agreement for
such Designated Securities and continuing to and including the later of (i)
the termination of trading restrictions for such Designated Securities, as
notified to the Designated Trust and the Company by the Representatives and
(ii) 30 days after the last Time of Delivery for such Designated Securities,
not to offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder, any Securities, any other beneficial interests in the
assets of any Trust, or any capital securities or any other securities of any
Trust or the Company, as the case may be, that are substantially similar to
such Designated Securities (including any guarantee of such securities) or
any securities that are convertible into or exchangeable for, or that
represent the right to receive securities, capital securities or any such
substantially similar securities of any Trust or the Company without
the prior written consent of the Representatives;
(f) In the case of the Company, to issue the Guarantee concurrently with
the issue and sale of the Securities as contemplated herein or in the Pricing
Agreement; and
(g) If the Trust and the Company elect to rely upon Rule 462(b), the Trust
and the Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement, and the Trust and the Company shall at
the time of filing either pay to the Commission the filing fee for the rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that it
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities, the Guarantees and the Subordinated Debentures
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the
12
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Company
Agreement, the Securities and the Subordinated Debentures, any Blue Sky
Memorandum, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities, the Guarantees and the Subordinated Debentures for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey(s); (iv) any fees
charged by securities rating services for rating the Securities and the
Subordinated Debentures; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities and the issuance of the Guarantees and the
Subordinated Debentures; (vi) the cost of preparing the Securities and the
Subordinated Debentures; (vii) the fees and expenses of any Trustee, Indenture
Trustee and Guarantee Trustee, and any agent of any trustee and the fees and
disbursements of counsel for any trustee in connection with any Trust Agreement,
Indenture, Guarantee and the Securities; (viii) the cost of qualifying the
Securities with The Depository Trust Company; (ix) any fees and expenses in
connection with listing the Securities and the Subordinated Debentures and the
cost of registering the Securities under Section 12 of the Exchange Act; and (x)
all other costs and expenses incident to the performance of its obligations
hereunder and under any Over-allotment Options which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under the
Pricing Agreement relating to such Designated Securities shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and other statements of the Designated Trust and the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Trust and the Company have elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or, to the knowledge of the Company, threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
13
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions (a draft of each such opinion is
attached as Xxxxx XXX(a) hereto), dated each Time of Delivery for such
Designated Securities, with respect to the incorporation of the Company, the
validity of the Designated Subordinated Debentures and the Designated
Guarantee, the Registration Statement, the Prospectus as amended or
supplemented, as well as such other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxx X. Xxxxxx, Executive Vice President and General Counsel of the
Company, shall have furnished to the Representatives her written opinion (a
draft of such opinion is attached as Xxxxx XXX(b) hereto), dated each Time of
Delivery for such Designated Securities, respectively, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of New York,
and each Significant Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own, lease and operate its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; the Designated Securities
have been duly authorized by the Company as depositor on behalf of the
Designated Trust; and the Designated Securities conform to the description
of the Securities contained in the Prospectus as amended or supplemented;
(iii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole; to the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Designated Trust is a party
or of which any property of the Designated Trust is the subject; and to
the best of such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
--------------------
14
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Designated Trust and the Company;
(v) The issuance by the Company of the Designated Guarantee and the
Designated Subordinated Debentures, the compliance by the Company with all
of the provisions of this Agreement and the Pricing Agreement and the
Company Agreements, the execution, delivery and performance by the Company
of the Company Agreements and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel 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 other than any such
conflict, breach or violation that would not have a material adverse
effect on or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole, nor will such actions result in any
violation of any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Designated Trust or the Company or any of their properties;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Designated Securities being
delivered at such Time of Delivery or the issuance of the Designated
Guarantee and the Designated Subordinated Debentures or the consummation
by the Designated Trust or the Company of the transactions contemplated by
this Agreement or such Pricing Agreement and the Company Agreements,
except such as have been obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Designated
Securities by the Underwriters or the issuance of the Designated Guarantee
and Designated Subordinated Debentures by the Company;
(vii) To the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument of
which it is a party or by which it or any of its properties may be bound,
other than any such violation or default that would not have a material
adverse effect on or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; the Designated Trust is not in
violation of its Trust Agreement or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(viii) The statements set forth (i) in the Prospectus under the
captions "Description of Junior Subordinated Debentures", "Description of
Capital Securities", "Description of Guarantees", "The Expense Agreements"
and "Relationship Among the Capital Securities,
15
the Corresponding Junior Subordinated Debentures, the Expense Agreements
and the Guarantees", and (ii) in the Prospectus as amended or supplemented
under the captions "Certain Terms of Capital Securities", "Certain Terms
of Subordinated Debentures" and "Certain Terms of Guarantee",
insofar as they constitute a summary of the terms of the Securities,
Subordinated Debentures, the Guarantees, the Expense Agreements and the
Company Agreements (including the Designated Securities, the Designated
Subordinated Debentures, the Designated Guarantee and the Designated
Expense Agreement), and (x) in the Prospectus under the caption "Plan of
Distribution" and (y) in the Prospectus as amended or supplemented under
the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, in each case are
accurate, complete and fair;
(ix) The Designated Subordinated Debentures are in the form
prescribed in or pursuant to the Indenture, have been duly and validly
authorized by the Company by all necessary corporate action and, when
completed, executed and authenticated as specified in or pursuant to the
Indenture and issued and delivered, will be valid and binding obligations
of the Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(x) The Company Agreements have each been duly authorized, executed
and delivered by the parties thereto and constitute valid and legally
binding instruments, enforceable in accordance with their respective
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture, the Designated Guarantee and the Designated Trust Agreement
have been duly qualified under the Trust Indenture Act;
(xi) The issuance by the Company of the Guarantee and the
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement and the Pricing Agreement and the Company
Agreements, the execution, delivery and performance by the Company of the
Company Agreements and the consummation of the transactions herein and
therein contemplated will not result in any violation of the provisions of
the Company's Restated Certificate of Incorporation or By-Laws;
(xii) The Designated Trust is not an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act;
(xiii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason to believe
that any of such documents, when they became effective or were so filed,
as the case may be,
16
contained, in the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents
which were filed under the Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xiv) The Registration Statement and the Prospectus as amended or
supplemented, and any further amendments and supplements thereto made by
the Designated Trust or the Company prior to such Time of Delivery (other
than the financial statements and related schedules therein, as to which
such counsel need express no opinion), comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder; although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to in
the opinion in subsection (viii) of this Section 7(c), such counsel has no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Designated Trust or
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Designated Trust or the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that, as
of such Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Designated Trust or the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or supplemented
or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or incorporated
by reference or described as required;
(d) Special Delaware counsel to the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to the Representatives,
the Company and the Designated Trust their written opinion (a draft of such
opinion is attached as Xxxxx XXX(c) hereto), dated the respective Time of
Delivery in form and substance satisfactory to the Representatives to the effect
that
17
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Business
Trust Act, and all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of the
Designated Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust Agreement,
the Designated Trust has the power and authority to own property and
conduct its business, all as described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees, enforceable against the
Company and the Trustees, in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, receivership, liquidation,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights to general equity principles, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and to the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution;
(iv) Under the Delaware Business Trust Act and the Trust Agreement, the
Designated Trust has the requisite trust power and authority to (a)
execute, deliver and perform its obligations under this Agreement and the
Pricing Agreement and (b) issue and perform its obligations under the
Designated Securities and the Common Securities of the Designated Trust;
(v) Under the Delaware Business Trust Act and the Trust Agreement,
the execution and delivery by the Designated Trust of this Agreement and
the Pricing Agreement, and the performance by the Designated Trust of its
obligations hereunder and thereunder, have been duly authorized by the
requisite trust action on the part of the Designated Trust;
(vi) The Designated Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and non-assessable beneficial
interests in the Designated Trust and are entitled to the benefits
provided by the Trust Agreement; the Securityholders, as beneficial owners
of the Designated Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware; provided that such counsel may note that the Securityholders may
be obligated, pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with and pay taxes or governmental charges
arising from transfers or exchanges of Securities Certificates and the
issuance of replacement Securities Certificates and (b) provide security
and indemnity in connection with requests of or directions to the Property
Trustee (as defined in the Trust Agreement) to exercise its rights and
remedies under the Trust Agreement;
(vii) The Common Securities of the Designated Trust have been duly
authorized by the Trust Agreement and are validly issued and represent
beneficial interests in the Designated Trust;
18
(viii) Under the Delaware Business Trust Act and the Trust Agreement,
the issuance of the Designated Securities and the Common Securities of the
Designated Trust is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of Designated
Securities and the Common Securities of the Designated Trust, the
execution, delivery and performance by the Designated Trust of this
Agreement and the Pricing Agreement, the consummation by the Designated
Trust of the transactions contemplated thereby and compliance by the
Designated Trust with its obligations thereunder will not violate (a) any
of the provisions of the Certificate of Trust of the Designated Trust or
the Trust Agreement, or (b) any applicable Delaware law or administrative
regulation;
(x) Assuming that the Designated Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than maintaining the Delaware Trustee and the
filing of documents with the Secretary of State of the State of Delaware)
or employees in the State of Delaware, no authorization, approval, consent
or order of any Delaware court or governmental authority or agency is
required to be obtained by the Designated Trust solely in connection with
the issuance and sale of the Designated Securities and the Common
Securities of the Designated Trust. (In rendering the opinion expressed
in this paragraph (x), such counsel need express no opinion concerning the
securities laws of the State of Delaware.); and
(xi) Assuming that the Designated Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than maintaining the Delaware Trustee and the
filing of documents with the Secretary of State of the State of Delaware)
or employees in the State of Delaware, the Securityholders (other than
those holders of the Securities who reside or are domiciled in the State
of Delaware) will have no liability for income taxes imposed by the State
of Delaware solely as a result of their participation in the Designated
Trust, and the Designated Trust will not be liable for any income tax
imposed by the State of Delaware;
(xii) Assuming that the Designated Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than maintaining the Delaware Trustee and the filing of
documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, there are no taxes, fees or other
governmental charges payable by the Designated Trust (or the Trustees of
the Designated Trust on behalf of the Designated Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by either Trustee of the
Designated Trust of the Trust Agreement;
(e) Tax counsel for the Designated Trust and the Company satisfactory to
the Representatives shall have furnished to the Representatives their written
opinion (a draft of such opinion is attached as Xxxxx XXX(d) hereto), dated
the respective Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect that such firm confirms its opinion set forth
in the Prospectus under the caption "U.S. Federal Income Tax Consequences";
(f) On the date of the Pricing Agreement for such Designated Securities at
a time prior to the execution of the Pricing Agreement with respect to the
Designated Securities and at each Time of Delivery for such Designated
Securities, Ernst & Young LLP, who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in the
Registration Statement, shall have furnished to the Representatives a letter,
dated the effective date of the Registration Statement or the date of the
most recent report filed with the Commission containing financial statements
and incorporated by reference in the
19
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the Representatives
may reasonably request and in form and substance satisfactory to the
Representatives;
(g) (i) None of the Designated Trust, the Company or any of the Company's
subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus
as amended or supplemented prior to the date of the Pricing Agreement
relating to the Designated Securities any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order, decree or regulation, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date
of the Pricing Agreement relating to the Designated Securities, and (ii)
since the respective dates as of which information is given in the Prospectus
as amended or supplemented prior to the date of the Pricing Agreement
relating to the Designated Securities there shall not have been any change in
the capital stock or long-term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Firm Designated Securities or Optional
Designated Securities or both on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the Designated
Securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the
Company's debt securities or preferred stock;
(i) 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 in securities generally on the
New York Stock Exchange; (ii) a suspension or material limitation in trading
in the Company's securities in the over-the-counter market; (iii) a general
moratorium on commercial banking activities declared by either Federal or New
York State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
Clause (iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Firm
Designated
20
Securities or Optional Designated Securities or both on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(j) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of the Pricing Agreement for such
Designated Securities or some other day as agreed by the Company and the
Underwriters; and
(k) The Designated Trust and the Company shall have furnished or caused to
be furnished to the Representatives at each Time of Delivery for the
Designated Securities certificates of officers of the Designated Trust and
the Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Designated Trust and the Company herein
at and as of such Time of Delivery, as to the performance by the Designated
Trust and the Company of all of its obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (h) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Designated Trust and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Designated Trust nor the Company
shall be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Designated Trust and the
Company by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities; provided further, that the Company shall not be liable to any
-------- -------
Underwriter under the indemnity agreement in this subsection (a) with respect to
any Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Designated Securities to a person as to whom it shall be established by the
Company that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of a Prospectus or a Prospectus as then
amended or supplemented in any case where such delivery is required by the Act
if the Company has previously furnished copies thereof in sufficient quantity to
such Underwriter as required by Section 5(c) and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus which was identified in
writing prior to the date hereof to such Underwriter and corrected in the
Prospectus or in the Prospectus as then amended or supplemented.
(b) Each Underwriter will indemnify and hold harmless the Designated Trust
and the Company against any losses, claims, damages or liabilities to which the
Designated Trust may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any amendment or supplement thereto, or arise out of or
21
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Designated Trust and the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Designated Trust and the
Company for any legal or other expenses reasonably incurred by the Designated
Trust in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify such indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Designated Trust and the Company on the one hand and the Underwriters of
the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under
22
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Designated Trust and the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Designated Trust
and the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Designated Trust and the Company
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Designated Trust and the Company on the one hand or
such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Designated Trust, the Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Designated Trust and the Company under this
Section 8 shall be in addition to any liability which the Designated Trust and
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Designated Trust and the Company and to each person,
if any, who controls the Designated Trust and the Company within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Designated Securities or Optional Designated Securities which it has agreed
to purchase under the Pricing Agreement relating to such Securities, the
Representatives may in their discretion arrange for
23
themselves or another party or other parties to purchase such Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or Optional Designated Securities, as the case may be,
then the Designated Trust shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the
Designated Trust that they have so arranged for the purchase of such Securities,
or the Designated Trust notifies the Representatives that it has so arranged for
the purchase of such Securities, the Representatives or the Designated Trust
shall have the right to postpone a Time of Delivery for such Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Designated Trust agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the Firm
Designated Securities or Optional Designated Securities, as the case may be, of
a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust as provided in subsection (a) above, the aggregate number of
such Securities which remains unpurchased does not exceed one-eleventh of the
aggregate number of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, then the Designated Trust shall have the right to require each non-
defaulting Underwriter to purchase the number of Firm Designated Securities or
Optional Designated Securities, as the case may be, which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Firm Designated Securities
or Optional Designated Securities, as the case may be, which such Underwriter
agreed to purchase under such Pricing Agreement) of the Firm Designated
Securities or Optional Designated Securities, as the case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the Firm
Designated Securities or Optional Designated Securities, as the case may be, of
a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust as provided in subsection (a) above, the aggregate number of
Firm Designated Securities or Optional Designated Securities, as the case may
be, which remains unpurchased exceeds one-eleventh of the aggregate number of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, to be purchased at the respective Time of Delivery, as referred to in
subsection (b) above, or if the Designated Trust shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Designated Securities or the Over-allotment
Option relating to such Optional Designated Securities,
24
as the case may be, shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Designated Trust or the Company, except
for the expenses to be borne by the Designated Trust and the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Designated Trust or the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Designated Trust or the Company, or any officer or director
or controlling person of the Designated Trust or the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust nor the Company shall
then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities with respect to which
such Pricing Agreement shall have been terminated except as provided in Sections
6 and 8 hereof; but, if for any other reason Designated Securities are not
delivered by or on behalf of the Designated Trust or the Company as provided
herein, the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Designated Trust or the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Company, respectively, set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Designated Trust and the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
25
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, each Designated Trust, the
Company and, to the extent provided in Sections 8 and 10 hereof, the officers
and directors of each Designated Trust, the Company and each person who controls
any Designated Trust or the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign merely by reason of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
26
Very truly yours,
AMERICAN EXPRESS COMPANY
By:
-----------------------
Name:
Title:
AMERICAN EXPRESS COMPANY
CAPITAL TRUST I
By: American Express Company
as Depositor
By:
-----------------------
Name:
Title:
AMERICAN EXPRESS COMPANY
CAPITAL TRUST II
By: American Express Company
as Depositor
By:
-----------------------
Name:
Title:
27
Pricing Agreement
-----------------
ANNEX I
[Names of Representatives]
As Representatives of the several
Underwriters named in Schedule I hereto,
Date: ____ __, 199_
Ladies and Gentlemen:
American Express Company Capital Trust [I][II], a statutory business trust
formed under the laws of the State of Delaware (the "Designated Trust") and
American Express Company, a New York corporation (the "Company"), propose,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ____ __, 199_ (the "Underwriting Agreement"), to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"
consisting of Firm Designated Securities and any Optional Designated Securities
the Underwriters may elect to purchase). The principal asset of the Trust
consists of debt securities of the Company (the "Subordinated Debentures"), as
specified in Schedule II to this Agreement. The Designated Securities will be
guaranteed by the Company to the extent set forth in this Agreement with respect
to such Designated Securities (the "Guarantee"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and 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, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representative herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representative designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Initial Registration Statement or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, (a) the Designated Trust agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Designated Trust, at the time
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the number of Firm Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto and, (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional
Designated Securities, as provided below, the Designated Trust agrees to issue
and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Designated Trust at the purchase
price to the Underwriters set forth in Schedule II hereto that portion of the
number of Optional Designated Securities as to which such election shall have
been exercised.
The Designated Trust hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto on the
terms referred to in the paragraph above for the sole purpose of covering over-
allotments in the sale of the Firm Designated Securities. Any such election to
purchase Optional Designated Securities may be exercised by written notice from
the Representatives to the Designated Trust and the Company given within a
period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Designated Trust otherwise
agree in writing, no earlier than two or later than ten business days after the
date of such notice.
2
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Designated Trust and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Designated Trust and the Company for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
AMERICAN EXPRESS COMPANY
By:
------------------------------
Name:
Title:
AMERICAN EXPRESS COMPANY
CAPITAL TRUST [I] [II]
By: American Express Company
as Depositor
By:
------------------------------
Name:
Title:
Accepted as of the date hereof:
[Names of Representatives]
As Representatives of the Underwriters
named in Schedule I hereto
By:
---------------------------------
3
SCHEDULE I
Maximum Number
Number of of Optional
Firm Designated
Designated Securities Which
Securities May be
Underwriter to be Purchased Purchased
----------- --------------- ---------
[Names of Representatives]...................
[Names of other Underwriters]................
Total
I-1
SCHEDULE II
Designated Trust:
American Express Company Capital Trust [I][II]
Title of Designated Securities:
[___%] [Floating Rate] Capital Securities, Series ___
Liquidation Amount of the Designated Securities:
$__ per Designated Security
Aggregate principal amount:
Aggregate liquidation amount of Designated
Securities to be sold: $
Price to Public:
___% of the liquidation amount of the Designated Securities
Purchase Price by Underwriters:
_______% of the liquidation amount of the Designated Securities
Underwriters' Compensation:
As compensation to the Underwriters for their commitments hereunder, and in
view of the fact that the proceeds of the sale of the Designated Securities
will be used by the Designated Trust to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay at each Time of
Delivery to [the Designated Representative], for the accounts of the
several Underwriters, an amount equal to $ per capital
security for the Designated Securities to be delivered at each Time of
Delivery ($ in the aggregate).
Specified funds for payment of purchase price:
Federal (same day) Funds
Accountants' Letter to be delivered on date of Pricing Agreement:
Yes
II-1
Trust Agreement:
Amended and Restated Trust Agreement dated as of ____ __, 199_, between the
Company, as Depositor, Bankers Trust Company, as Property Trustee, Bankers
Trust (Delaware), as Delaware Trustee, and the several Holders of Trust
Securities
Indenture:
Indenture dated as of ____ __, 199_, between the Company and Bankers Trust
Company, as Indenture Trustee (the "Indenture")
Guarantee:
Guarantee Agreement dated as of ____ __, 199_, between Company and Bankers
Trust Company, as Guarantee Trustee
Expense Agreement
Agreement as to Expenses and Liabilities, dated as of ____ __, 199_ between
the Company and the Designated Trust
Subordinated Debentures:
[___%] [Floating Rate] Junior Subordinated Debentures, Series ___
Maturity:
________ __, ____ [(subject to shortening such maturity to a date not
earlier than ____ __, ____]
Interest Rate:
Interest Payment Dates:
[March 1, June 1, September 1 and December 1] [June 1 and December 1] of
each year, commencing on _________, ____
Extension Period:
[20 quarters] [10 semi-annual periods]
Redemption Provisions:
II-2
[The redemption provisions set forth in Section ___ of the Trust Agreement
shall apply to the Designated Securities]
Sinking Fund Provisions:
No sinking fund provisions
Exchange for Designated Securities:
[The Subordinated Debentures may be delivered in exchange for the
Designated Securities as provided in the Prospectus Supplement]
Listing of Designated Securities:
[New York Stock Exchange][None].
Time of Delivery:
_____ a.m., New York City time
____ __, ____
Closing Location:
Names and addresses of Representatives:
[Names of Representatives]
[Address for Notices]
II-3
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Designated Trust and the Company and its subsidiaries within the
meaning of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been separately furnished to the representatives of the
Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which have been separately furnished to the Representatives; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came
to their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
clause (B) were not determined on a basis substantially consistent with the
basis for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material
2
respects with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the compilation
of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(vi) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents
3
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
4
XXXXX XXX(a)
[Draft Opinion of Counsel for the Underwriters]
XXXXX XXX(b)
[Draft Opinion of Xxxxxx X. Xxxxxx]
XXXXX XXX(c)
[Draft Opinion of Special Delaware Counsel for the Designated Trust and the
Company]
XXXXX XXX(d)
[Draft Opinion of Tax Counsel]
