EXHIBIT 1.2
The Bank of New York Company, Inc.
Underwriting Agreement Standard Provisions
(August 2002)
From time to time, The Bank of New York Company, Inc., a New York
corporation (the "Company"), may enter into one or more pricing agreements
(each, a "Pricing Agreement") in the form of Annex I hereto, together with, if
such Pricing Agreement so specifies, a statutory business trust formed under the
laws of the State of Delaware (each, a "Trust" and, collectively, the "Trusts")
to offer and sell Designated Securities (as defined herein), including, in the
case of the Trust, only Preferred Securities (as defined herein). Each such
Pricing Agreement, with such additions, deletions or modifications to these
Underwriting Agreement Standard Provisions (these "Standard Provisions") as the
parties thereto may determine, and, subject to the terms and conditions stated
herein and therein, shall provide that the Company or the Trust identified in
such Pricing Agreement (such Trust being the "Designated Trust" with respect to
such Pricing Agreement), as the case may be, shall issue and sell to the firms
named in Schedule I to such Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain securities of the Company or the Designated Trust, as
the case may be, specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Designated Securities"). If
specified in such Pricing Agreement, the Company or the Designated Trust, as the
case may be, may grant to the Underwriters the right to purchase at their
election an additional number of such securities specified in such Pricing
Agreement as provided in Section 3 hereof (with respect to such Pricing
Agreement, the "Optional Designated Securities"). The Firm Designated Securities
and the Optional Designated Securities, if any, with respect to such Pricing
Agreement, are collectively called the "Designated Securities."
If the Designated Securities are to be issued and sold to the
Underwriters by the Company, such Designated Securities shall, as specified in
the applicable Pricing Agreement, consist of either (i) a series of the
Company's senior debt securities (the "Senior Debt Securities") to be issued
pursuant to an indenture dated as of July 18, 1991, as it may be supplemented
from time to time (the "Senior Indenture"), between the Company and Bankers
Trust Company, as trustee, (ii) a series of the Company's senior subordinated
debt securities (the "Senior Subordinated Debt Securities") to be issued
pursuant to an indenture dated as of October 1, 1993, as it may be supplemented
from time to time (the "Senior Subordinated Indenture"), between the Company and
Chase Manhattan Trust Company, National Association, as trustee, (iii) a series
of the Company's junior subordinated debt securities (the "Junior Subordinated
Debt Securities") to be issued pursuant to an indenture dated as of December 25,
1996, as it may be supplemented from time to time (the "Junior Subordinated
Indenture" and, together with the Senior Indenture and the Senior Subordinated
Indenture, each, an "Indenture"), between the Company and Bank One, National
Association, as trustee (the "Junior Trustee"), (iv) a series of the Company's
preferred stock, without par value (the "No Par Preferred Stock"), or a series
of the Company's preferred stock, par value $2.00 per share (together with the
No Par Preferred Stock, the "Preferred Stock"), or (v) shares of the Company's
common stock, par value $7.50 per share (the "Common Stock"),
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including a preferred stock purchase right for each such share issued pursuant
to a rights agreement dated as of December 10, 1985, as amended from time to
time, between the Company and The Bank of New York, as rights agent. If
specified in the applicable Pricing Agreement, the Preferred Stock shall be
deposited by the Company against delivery of receipts (the "Depositary
Receipts") to be issued by the bank or trust company named in such Pricing
Agreement as the depositary (the "Depositary") under a deposit agreement, to be
dated as of the date specified in such Pricing Agreement (the "Deposit
Agreement"), among the Company, the Depositary and the holders from time to time
of the Depositary Receipts issued thereunder. Such Depositary Receipts will
evidence depositary shares (the "Depositary Shares") and each Depositary Share
will represent the number of shares of Preferred Stock, or fractions thereof,
specified in such Pricing Agreement.
If the Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust, such Designated Securities shall, as
specified in the applicable Pricing Agreement, consist of preferred securities
representing preferred beneficial interests in the Designated Trust (the
"Preferred Securities") to be issued pursuant to an amended and restated trust
agreement with a bank or trust company named in such Pricing Agreement to be
dated as of the date specified in such Pricing Agreement (each, a "Trust
Agreement"). The proceeds of the concurrent sale of such Preferred Securities to
the public and of the common securities representing common ownership interests
in the Designated Trust (the "Common Securities") to the Company are to be
invested in a series of Junior Subordinated Debt Securities specified in such
Pricing Agreement (the "Corresponding Junior Subordinated Debt Securities").
Such Preferred Securities will be guaranteed by the Company (each, a
"Guarantee") to the extent set forth in a guarantee agreement to be dated as of
the date specified in such Pricing Agreement (each, a "Guarantee Agreement")
between the Company and a bank or trust company named in such Pricing Agreement
(the "Guarantee Trustee"). In connection with the issuance and sale of such
Preferred Securities, the Designated Trust will enter into an expense agreement
to be dated as of the date specified in such Pricing Agreement (each, an
"Expense Agreement") with the Company pursuant to which the Company will
reimburse the Designated Trust for certain expenses set forth therein.
The terms of any particular issuance of Designated Securities shall be
as specified in the Pricing Agreement with respect thereto as described herein.
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 will
act without any firm being designated as their representative. These Standard
Provisions shall not be construed as an obligation of the Company or any Trust,
as the case may be, to sell any of its securities or as an obligation of any
Underwriter to purchase any of such securities. The obligation of the Company or
any Trust, as the case may be, to issue and sell any of its securities and the
obligation of any Underwriter to purchase any of such securities shall be
evidenced by the Pricing Agreement with respect to only the Designated
Securities specified therein. Each Pricing Agreement shall specify the number of
Firm Designated Securities, the maximum number of Optional Designated
Securities, if any, the initial public offering price of the Designated
Securities or the manner of determining such price, certain terms of such
Designated Securities, including the terms on which and terms of the securities
into which such Designated Securities will be exchangeable or
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convertible, if any, 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, if any, the number of such
Designated Securities to be purchased by each Underwriter and the compensation,
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
Optional Designated Securities, if any, and payment therefor. The Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts) and may be evidenced by an exchange of facsimile communications or
any other rapid transmission device designed to produce a written record of
communications transmitted. These Standard Provisions will be incorporated by
reference in the Pricing Agreement with any such additions, deletions or
modifications hereto as the parties thereto may determine and shall be deemed to
be a part of the Pricing Agreement to the same extent as if such provisions had
been set forth in full therein. The term "Pricing Agreement" as used herein
shall refer to the Pricing Agreement relating to particular Designated
Securities, including the incorporation therein of these Standard Provisions as
so modified. The obligations of the Underwriters under each Pricing Agreement
shall be several and not joint.
2) Each of the Company and the Designated Trust, if applicable, jointly
and severally, represents and warrants to, and agrees with, each of the
Underwriters that (it being understood that additional representations and
warranties may be agreed to by the Representatives and the Company and the
Designated Trust, if applicable, in the Pricing Agreement to reflect, among
other things, any conversion or exchange features relating to the Designated
Securities):
a) A registration statement on Form S-3 (the file number of which
shall be specified in the Pricing Agreement) (the "Initial Registration
Statement") in respect of certain securities of the Company and the Trusts,
including the Designated Securities, 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, have been declared effective by the
Commission in such form; other than the registration statement, if any (the file
number of which shall be specified in the Pricing Agreement), increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) of the rules and regulations of the Commission under the Securities
Act of 1933, as amended (the "Act"), which became effective under the Act upon
filing, no other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed 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 any Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial Registration
Statement or used in connection with the offering and sale of the Designated
Securities (other than in making confirmations of sales of such Designated
Securities) is hereinafter called a "Preliminary Prospectus"; the various parts
of the Initial Registration Statement and any Rule 462(b) Registration
Statement, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the Initial Registration Statement at
the time such part of the Initial Registration Statement became effective, but
excluding any Statement of Eligibility under the Trust Indenture Act (as defined
herein) (Form T-1) of a trustee contained therein, if applicable, or such part
of such Rule 462(b) Registration Statement, if any, became or hereafter
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becomes effective, and including, to the extent applicable, the information
deemed to be included therein pursuant to Rule 430A of the rules and regulations
of the Commission under the Act, each as amended at the time such part of such
registration statement became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the securities of the
Company and the Trusts registered under any prior registration statement, the
Initial Registration Statement or the Rule 462(b) Registration Statement, as the
case may be, in the form in which it has most recently been filed with the
Commission on or prior to the date of the relevant Pricing 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 such 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 such
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or such 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 the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial 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) of the rules and regulations of the Commission 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 Exchange Act
and the rules and regulations of the Commission thereunder, and none of such
documents contained any 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, 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 Exchange Act and the rules and regulations
of the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, 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 Company and, if
applicable, to the Designated Trust by an Underwriter through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Designated 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, the rules and regulations of the Commission thereunder, and, if applicable,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, as
to the Registration Statement and any amendment thereto, do not and will not, as
of the applicable effective date as to the Registration Statement and such
amendment contain an
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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
and, as to the Prospectus and any amendment or supplement thereto, do not and
will not, as of their dates and their applicable filing dates as to the
Prospectus and such amendment or supplement, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, 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 Company and, if
applicable, to the Designated Trust by an Underwriter through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Designated Securities or, if applicable, to that part of the
Registration Statement which shall constitute the Statement of Eligibility under
the Trust Indenture Act (Form T-1) of a trustee.
d) Since the date of the latest audited financial statements
included in or incorporated by reference in the Registration Statement and the
Prospectus, there has not been any material adverse change, or any development
involving a prospective material adverse change, in the creditworthiness of the
Company and its subsidiaries on a consolidated basis otherwise than as set forth
or contemplated in the Prospectus.
e) Each of the Company and The Bank of New York (the "Bank")
has been duly organized and is validly existing as a corporation or banking
corporation, as the case may be, and is an existing corporation or banking
corporation, as the case may be, in good standing under the laws of the State of
New York.
f) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable; and all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued, are fully paid and nonassessable
(except as provided in Article III of the Banking Law of the State of New York)
and are owned by the Company, free and clear of all liens, encumbrances,
equities or claims.
g) If the Designated Securities are to be issued and sold to
the Underwriters by the Company, in the case of either Senior Debt Securities,
Senior Subordinated Debt Securities or Junior Subordinated Debt Securities, the
Designated Securities have been duly authorized by the Company and, when validly
issued by the Company and validly authenticated and delivered by the applicable
trustee pursuant to the applicable Indenture, will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable principles.
Additionally:
i) In the case of Senior Debt Securities, such Senior Debt
Securities will be entitled to the benefits provided by the Senior
Indenture; the Senior Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act and the Senior Indenture constitutes a valid and legally
binding instrument of the Company enforceable against the Company in
accordance with its terms,
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subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equitable principles; and
such Senior Debt Securities and the Senior Indenture will conform in
all material respects to the descriptions thereof in the Prospectus as
amended or supplemented with respect to such Senior Debt Securities;
ii) In the case of Senior Subordinated Debt Securities,
such Senior Subordinated Debt Securities will be entitled to the
benefits provided by the Senior Subordinated Indenture; the Senior
Subordinated Indenture has been duly authorized, executed and delivered
by the Company and has been duly qualified under the Trust Indenture
Act and the Senior Subordinated Indenture constitutes a valid and
legally binding instrument of the Company enforceable against the
Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equitable principles; and such Senior
Subordinated Debt Securities and the Senior Subordinated Indenture will
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented with respect to such Senior
Subordinated Debt Securities; and
iii) In the case of Junior Subordinated Debt Securities,
such Junior Subordinated Debt Securities will be entitled to the
benefits of the Junior Subordinated Indenture; the Junior Subordinated
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act and
the Junior Subordinated Indenture constitutes a valid and legally
binding instrument of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equitable principles; and such Junior Subordinated Debt
Securities and the Junior Subordinated Indenture will conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented with respect to such Junior Subordinated Debt
Securities.
h) If the Designated Securities are to be issued and sold to
the Underwriters by the Company, in the case of either shares of Preferred Stock
or Common Stock, such shares have been duly authorized and, when such shares are
issued and delivered pursuant to the Pricing Agreement with respect to such
shares, such shares will be duly and validly issued and fully paid and
non-assessable; and such shares will conform in all material respects to the
descriptions thereof contained in the Prospectus as amended or supplemented with
respect to such shares.
i) If the Designated Securities are to be issued and sold to
the Underwriters by the Company, in the case of Depositary Shares, such
Depositary Shares have been duly authorized and, when such Depositary Shares are
issued and delivered pursuant to the Deposit Agreement and the Pricing Agreement
with respect to such Depositary Shares, the related Depositary Receipts will
entitle the holders thereof to the rights specified in such Depositary Receipts
and in the Deposit Agreement; and such Depositary Shares will conform in all
material respects to the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Depositary Shares.
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j) If the Designated Securities are to be issued and sold to
the Underwriters by the Company, the issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions of the Designated
Securities, the Pricing Agreement, the Deposit Agreement and the applicable
Indenture, if any, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) the Certificate of
Incorporation or By-laws of the Company or the charter or by-laws of any of its
subsidiaries or (iii) any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties except, in the case of
clauses (i) and (iii), any such conflict, breach or violation that would not
have a material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as a whole, or on the
issuance and sale of the Designated Securities; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Designated
Securities or the consummation by the Company of the transactions contemplated
by the Pricing Agreement, the Deposit Agreement or the applicable Indenture, if
any, except such as have been, or will have been prior to the Time of Delivery
(as defined in Section 4 hereof), obtained under the Act and the Trust Indenture
Act, if applicable, 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.
k) If the Designated Securities are to be issued and sold to
the Underwriters by the Designated Trust:
i) The Designated Trust has been duly organized and is
validly existing as a business trust in good standing under the laws of
the State of Delaware, with power and authority (trust and other) to
own its property and conduct its business as described in the
Prospectus, and to enter into and perform its obligations under the
Pricing Agreement and the Designated Securities and to consummate the
transactions contemplated by the Pricing Agreement; the Designated
Trust has no subsidiaries and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or the ownership of its property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Designated Trust; the Designated Trust has conducted and will conduct
no business other than the transactions contemplated by the Pricing
Agreement and described in the Prospectus as amended and supplemented
with respect to the Designated Securities; the Designated Trust is not
a party to or bound by any agreement or instrument other than the
Pricing Agreement, the Trust Agreement of the Designated Trust and the
agreements and instruments contemplated by such Trust Agreement and
described in the Prospectus as amended and supplemented with respect to
the Designated Securities; the Designated Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by the Pricing Agreement and the Trust Agreement of the
Designated Trust and described in the Prospectus as amended and
supplemented with respect to the Designated Securities; the Designated
Trust is not a party to or subject to any action, suit or proceeding of
any nature;
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the Designated Trust is not, and at the Time of Delivery will not be,
classified as an association taxable as a corporation for United States
federal income tax purposes;
ii) The Designated Securities have been duly
authorized on behalf of the Designated Trust by the Company, as
depositor of the Designated Trust, and, when the Designated Securities
are issued and delivered pursuant to the Pricing Agreement, the
Designated Securities will have been duly and validly issued and fully
paid and non-assessable beneficial interests in the Designated Trust
entitled to the benefits provided by the Trust Agreement; and the
Designated Securities will conform in all material respects to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to the Designated Securities;
iii) 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;
the issuance of the Designated Securities is not subject to preemptive
or other similar rights;
iv) 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 in all material respects to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to the
Designated Securities; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and, at the Time of
Delivery, all of the issued and outstanding Common Securities of the
Designated Trust will be directly owned by the Company, free and clear
of all liens, encumbrances, equities or claims;
v) The Guarantee Agreement, the Trust Agreement,
the Corresponding Junior Subordinated Debt Securities, the Expense
Agreement and the Junior Subordinated Indenture (collectively referred
to as the "Company Agreements") have each been duly authorized by the
Company; the Junior Subordinated Indenture has been duly executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles; except for the Junior Subordinated Indenture, each Company
Agreement, when validly executed and delivered by the Company and, in
the case of the Guarantee, by the Guarantee Trustee, and, in the case
of the Trust Agreement, by the Issuer Trustees (as defined in the Trust
Agreement) and, in the case of the Corresponding Junior Subordinated
Debt Securities, when validly issued by the Company and validly
authenticated and delivered by the Junior Trustee pursuant to the
Junior Subordinated Indenture, will constitute a valid and legally
binding instrument or obligation, as the case may be, of the Company
enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equitable
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principles; the Trust Agreement, the Junior Subordinated Indenture and
the Guarantee Agreement have each been duly qualified under the Trust
Indenture Act; the Corresponding Junior Subordinated Debt Securities
are entitled to the benefits of the Junior Subordinated Indenture; and
the Company Agreements will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented with
respect to the Designated Securities;
vi) The issue and sale of the Designated Securities
and the compliance by the Designated Trust with all of the provisions
of the Designated Securities, the Trust Agreement, the Pricing
Agreement, the purchase of the Corresponding Junior Subordinated Debt
Securities by the Designated Trust 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 to which the Designated
Trust is a party or, by which the Designated Trust is bound or to which
any of the property or assets of the Designated Trust is subject, nor
will such action result in any violation of the provisions of the Trust
Agreement, the certificate of trust relating to the Designated Trust or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Designated
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 the
Designated Trust, the purchase of the Corresponding Junior Subordinated
Debt Securities by the Designated Trust or the consummation by the
Designated Trust of the transactions contemplated by the Pricing
Agreement or the Trust Agreement, except such as have been, or will
have been, prior to the 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; and
vii) The issuance by the Company of the Guarantee,
the issuance and delivery by the Company of the Corresponding Junior
Subordinated Debt Securities, the compliance by the Company with all of
the provisions of the Pricing Agreement and 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, (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) the Certificate of Incorporation or
By-laws of the Company or the charter or by-laws of any of its
subsidiaries or (iii) any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties except, in the case of clauses (i) and (iii), any such
conflict, breach or violation that would not have a material adverse
effect on the financial condition or results of operations of the
Company and its subsidiaries, considered as a whole, or on the issuance
of the Guarantee or the Corresponding Junior Subordinated Debt
Securities; and no consent, approval, authorization, order,
registration or qualification of or with any
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such court or governmental agency or body is required for the issuance
of the Guarantee, the issuance and delivery of the Corresponding Junior
Subordinated Debt Securities or the consummation by the Company of the
transactions contemplated by the Pricing Agreement or the Company
Agreements except such as have been, or will have been, prior to the
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.
l) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened against or affecting, the Company or
any of its subsidiaries (including the Designated Trust, if applicable), which
might result in any material adverse change in the financial condition,
shareholders' equity or results of operations of the Company and its
subsidiaries (including the Designated Trust, if applicable) considered as one
enterprise.
m) Neither the Designated Trust, if applicable, nor the
Company is, nor after giving effect to the offering and sale of the Designated
Securities will either 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").
n) The accounting firm named in the Prospectus as amended or
supplemented as having certified the financial statements of the Company and its
subsidiaries included in or incorporated by reference in such Prospectus are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
o) The Pricing Agreement has been duly authorized, executed
and delivered by the Company and, if applicable, the Designated Trust.
3) Upon the execution of the Pricing Agreement applicable to the
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 Company or the Designated Trust, as the case may be, may specify in
the Pricing Agreement applicable to any Designated Securities that the Company
or the Designated Trust, as the case may be, thereby grants to the Underwriters
the right (an "Over-allotment Option") to purchase at their election up to the
number of Optional Designated Securities specified 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 only by written
notice from the Representatives to the Company, and if applicable, to the
Designated Trust, given within the 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 (the Subsequent Time of Delivery as defined in Section 4 hereof, 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
Company, and if applicable, the Designated Trust, otherwise agree in writing,
14
earlier than or later than the respective number of business days after the date
of such notice set forth in such Pricing Agreement).
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
Company, and if applicable, the Designated Trust, has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company, and if applicable, the Designated Trust, has not been so advised, the
number of Optional Designated Securities to be so added shall be, in each case,
their 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.
4) Certificates representing 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 forty-eight hours prior notice to
the Company, shall be delivered by or on behalf of the Company or the Designated
Trust, as the case may be, 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 in immediately available funds to the
account of the Company or the Designated Trust, as the case may be, specified in
such Pricing Agreement, (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 and
the Company or the Designated Trust, as the case may be, 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 and the Designated Securities may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Subsequent
Time of Delivery". Each such time and date for delivery is herein called a "Time
of Delivery".
5) The Company and the Designated Trust, if applicable, jointly and
severally, agree with each of the Underwriters of the Designated Securities:
a) To file the Prospectus as amended or supplemented with
respect to the Designated Securities with the Commission; to make no further
amendment or any supplement to the Registration Statement or the Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to such
Designated Securities and prior to the Time of Delivery for such Designated
Securities which shall be reasonably disapproved by the Representatives for such
Designated Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after the Time of
Delivery for such Designated
15
Securities and to furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements required
to be filed by 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 such Designated Securities;
to advise the Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to such Designated Securities, of
the suspension of the qualification of such Designated Securities or, if
applicable, the Corresponding Junior Subordinated Debt Securities issuable upon
termination of the Designated Trust, 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 the 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 such Designated 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,
if applicable, the Corresponding Junior Subordinated Debt Securities issuable
upon termination of the Designated Trust, for offering and sale under the
securities laws of such jurisdictions as the Representatives may 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 Company nor any applicable Designated Trust shall be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
c) To furnish the Underwriters with copies of the Prospectus as amended
or supplemented in such quantities as the Representatives may from time to time
reasonably request, and, if the delivery of a prospectus is required at any time
prior to nine months after the time of issue of the Prospectus in connection
with the offering or sale of such Designated Securities or, if applicable, the
Corresponding Junior Subordinated Debt Securities issuable upon termination of
the Designated Trust, 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 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, if applicable, 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 that will correct such
statement or omission or effect such compliance; and in case any Underwriter is
required to deliver a Prospectus in connection with sales of such Designated
Securities at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act.
16
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 Initial Registration Statement
(as defined in Rule 158(c) of the rules and regulations of the Commission under
the Act), an earning 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 or the Designated Trust, as the case may be, Rule 158 of the rules and
regulations of the Commission under the Act).
e) If such Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust, 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 Company by the Representatives and
(ii) the last Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of, except as provided in the
Pricing Agreement, any preferred securities in any of the Trusts, any other
beneficial interests in the assets of the Designated Trust or any other Trust,
or any preferred securities or any other securities of the Designated 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, preferred securities or any such substantially
similar securities of either the Designated Trust, any other Trust or the
Company that are subordinated to the Senior Debt (as defined in the Junior
Subordinated Indenture) of the Company in a manner substantially similar to the
subordination of the Corresponding Junior Subordinated Debt Securities without
the prior written consent of the Representatives.
f) If such Designated Securities are to be issued and sold to the
Underwriters by the Company, 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 Company by the Representatives and (ii) the last
Time of Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of, except as provided in the Pricing Agreement, any
securities of the Company (other than (a) pursuant to employee stock option,
profit sharing or thrift plans or the Company's Dividend Reinvestment and Stock
Purchase Plan, (b) on exercise of warrants outstanding on the date of such
Pricing Agreement, (c) on the conversion of convertible securities outstanding
on the date of such Pricing Agreement or (d) directly or indirectly to a
corporation or subsidiary, division or other business unit thereof, or a similar
transaction, provided, however, that such corporation or its shareholders shall
receive shares of Preferred Stock or Common Stock or securities substantially
similar thereto, or securities convertible into, or exchangeable for, such
shares or any security substantially similar thereto) that are substantially
similar to such Designated Securities, without the prior written consent of the
Representatives.
g) To furnish to the holders of such Designated Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and cash flow of
the Company and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Initial Registration Statement), consolidated
summary financial information of the Company and its subsidiaries for such
quarter in reasonable detail.
17
h) If the Company and, if applicable, the Designated Trust elect to
rely upon Rule 462(b) of the rules and regulations of the Commission under the
Act, the Company and, if applicable, the Designated Trust shall file a Rule
462(b) Registration Statement with the Commission in compliance with such Rule
462(b) by 10:00 p.m., Washington, D.C. time, on the date of the Pricing
Agreement with respect to such Designated Securities and the Company and, if
applicable, the Designated Trust 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) of
the rules and regulations of the Commission under the Act.
6) The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's and, if applicable, the Trust's counsel and
accountants in connection with the registration of the Designated Securities 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 Underwriters and dealers; (ii) the cost of printing or producing
any agreement among underwriters, these Standard Provisions, the Pricing
Agreement, any blue sky surveys or memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Designated Securities; (iii) all expenses in
connection with the qualification of the Designated Securities and, if
applicable, the Guarantee and the Corresponding Junior Subordinated Debt
Securities 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 such
blue sky surveys or memoranda; (iv) any fees charged by securities rating
services for rating the Designated Securities and, if applicable, the
Corresponding Junior Subordinated Debt Securities; (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 Designated Securities and, if applicable,
the issuance of the Guarantee and the Corresponding Junior Subordinated Debt
Securities; (vi) the cost of preparing the Designated Securities and, if
applicable, the Corresponding Junior Subordinated Debt Securities; (vii) the
fees and expenses of any trustee and any agent of such trustee and the fees and
disbursements of counsel for such trustee in connection with the Trust
Agreement, any Indenture, the Guarantee Agreement and the Designated Securities;
(viii) the cost of qualifying the Designated Securities with The Depository
Trust Company; (ix) all fees and expenses in connection with listing the
Designated Securities (and the Corresponding Junior Subordinated Debt
Securities, if necessary) on the New York Stock Exchange or any other
organization and the cost of registering the Designated Securities (and the
Corresponding Junior Subordinated Debt Securities, if necessary) under Section
12 of the Exchange Act; and (x) all other costs and expenses incident to the
performance of its obligations or the obligations of the Designated Trust under
the Pricing Agreement that are not otherwise specifically provided for in this
Section 6. It is understood, however, that, except as provided in this Section 6
and Section 8 and Section 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 Designated Securities by them, and any advertising expenses
connected with any offers they may make.
7) The obligations of the Underwriters of the 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
18
Designated Trust, if applicable, 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 such Designated Trust and the Company shall have performed all of
their respective obligations hereunder and thereunder theretofore to be
performed, and the following additional conditions:
a) 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 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.
b) Pillsbury Winthrop LLP, counsel for the Underwriters, shall have
furnished to the Representatives such written opinion or opinions, dated each
Time of Delivery for such Designated Securities, with respect to, as applicable,
the incorporation of the Company and the formation of the Designated Trust, the
validity of the Designated Securities, the Corresponding Junior Subordinated
Debt Securities and the Guarantee and the Registration Statement and the
Prospectus as amended or supplemented and 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) Xxxx Xxxxxxxx, Senior Counsel of The Bank of New York, or other
counsel designated by the Company reasonably acceptable to the Representatives
and specified in the applicable Pricing Agreement, shall have furnished to the
Representatives such written opinion or opinions to the effect of paragraphs (1)
through (6), inclusive, below, and, if the Designated Securities are Preferred
Securities, Xxxxxxxx & Xxxxxxxx, special counsel to the Company, or other
counsel designated by the Company reasonably acceptable to the Representatives
and specified in the applicable Pricing Agreement, shall have furnished to the
Representatives such written opinion or opinions to the effect of paragraph (2),
the first clause of paragraph (3), and paragraphs (4), 6(i), 6(ii), 6(iii) and
6(vi) below, in each case, dated each Time of Delivery for such Designated
Securities, and in each case in form and substance satisfactory to the
Representatives:
i) Each of the Company and the Bank has been duly incorporated,
and is an existing corporation or banking corporation, respectively, in
good standing under the laws of the State of New York and the Company has
the corporate power and authority to own its properties and conduct its
business as described in the Prospectus as amended or supplemented relating
to the Designated Securities;
ii) The Pricing Agreement with respect to the Designated
Securities has been duly authorized, executed and delivered by the Company;
iii) Each part of the Registration Statement, when such part
became effective, and the Prospectus as amended and supplemented, as of its
date (other than the financial statements and other financial data therein,
as to which such counsel need express no opinion), appeared on their face
to be appropriately responsive in all material respects, relevant to the
offering of the Designated Securities, to the requirements of the Act, the
Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder; and nothing which came to the attention of such
counsel in the course of such counsel's
19
review (as described in such opinion) has caused such counsel to believe
that, insofar as relevant to the offering of the Designated Securities, any
part of the Registration Statement, when such part became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as amended and
supplemented, as of its date (other than the financial statements and other
financial data therein, as to which such counsel need express no opinion),
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
also, nothing that has come to such counsel's attention in the course of
certain procedures (as described in such opinion) has caused such counsel
to believe that the Prospectus as amended and supplemented, as of the date
and time of delivery of such opinion, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (such counsel may state that he does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus as
amended and supplemented except for those made under the captions in the
Prospectus as amended or supplemented relating to the Designated Securities
and to the underwriting arrangements relevant to the Designated Securities,
in each case as identified in such opinion, insofar as they relate to
provisions of documents therein described, and that such counsel does not
express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement or the Prospectus as
amended and supplemented or as to any Statement of the Eligibility under
the Trust Indenture Act (Form T-1) of the applicable trustee);
iv) The statements set forth under the captions in the Prospectus
as amended or supplemented relating to the Designated Securities and to the
underwriting arrangements relevant to the Designated Securities, insofar as
they relate to provisions of documents therein described, constitute
accurate summaries of the terms thereof in all material respects;
v) If the Designated Securities are to be issued and sold to the
Underwriters by the Company:
(1) In the case of either Senior Debt Securities, Senior
Subordinated Debt Securities or Junior Subordinated Debt Securities,
the applicable Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act and constitutes a valid and legally binding instrument of the
Company enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles;
(2) In the case of either Senior Debt Securities, Senior
Subordinated Debt Securities or Junior Subordinated Debt Securities,
the Designated Securities have been duly authorized, executed and
delivered by the Company, authenticated and issued in conformity with
the terms of the applicable Indenture,
20
are entitled to the benefits of such Indenture and constitute
valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equitable
principles;
(3) In the case of shares of Preferred Stock or Common
Stock, such shares have been duly authorized and validly issued
and are fully paid and non-assessable;
(4) In the case of Depositary Shares, the Depositary
Shares have been duly authorized and the Deposit Agreement has
been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equitable principles; the Depositary Receipts have been
duly issued in accordance with the Deposit Agreement and the
persons in whose names the Depositary Receipts are registered
will be entitled to the rights specified in the Depositary
Receipts and in the Deposit Agreement;
(5) All regulatory consents, authorizations, approvals
and filings required to be obtained or made by the Company on or
prior to the date of such opinion under the Federal laws of the
United States and the laws of the State of New York for the
issuance, sale and delivery of the Designated Securities by the
Company to the Underwriters, in accordance with the Pricing
Agreement, have been obtained or made; provided, however, that
such counsel need not express any opinion with respect to state
securities laws; and
(6) The execution and delivery by the Company of the
applicable Indenture, the Deposit Agreement and the Pricing
Agreement do not, and the issuance and sale of the Designated
Securities in accordance with the Pricing Agreement and the
performance by the Company of its obligations under the
applicable Indenture, the Deposit Agreement, the Pricing
Agreement and the Designated Securities will not, violate the
Company's Certificate of Incorporation, as amended, or By-Laws,
in each case as in effect at the date of such opinion, result in
a default under or breach of the agreements listed in an annex to
such opinion, in each case as in effect at the date of such
opinion, or violate any existing Federal law of the United States
or law of the State of New York; provided, however, that such
counsel need express no opinion with respect to Federal or state
securities laws, other antifraud laws, fraudulent transfer laws,
the Employee Retirement Income Security Act of 1974 and related
laws that restrict transactions between United States persons and
citizens or residents of certain foreign countries; provided,
further, that insofar as performance by the Company and its
obligations under the applicable Indenture, the Deposit
Agreement, the Pricing Agreement and the Designated Securities is
concerned, such counsel need express no opinion as to
21
bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or
affecting creditors' rights.
vi) If the Designated Securities are to be issued and
sold to the Underwriters by the Designated Trust:
(1) The Company Agreements have each been duly
authorized, executed and delivered by the Company and
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with
their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equitable principles; and
the Trust Agreement, the Junior Subordinated Indenture and
the Guarantee Agreement have each been duly qualified under
the Trust Indenture Act;
(2) The Corresponding Junior Subordinated Debt
Securities have been duly authorized, executed and delivered
by the Company, authenticated and issued in conformity with
the terms of the Junior Subordinated Indenture, are entitled
to the benefits of the Junior Subordinated Indenture and
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equitable principles;
(3) The Designated Securities have been duly
authorized by the Company, as depositor, on behalf of the
Designated Trust;
(4) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company or the Designated Trust, as the case may be, on or
prior to the date of such opinion under the Federal laws of
the United States and the laws of the State of New York for
the issuance, sale and delivery of the Designated Securities
by the Designated Trust to the Underwriters and the
issuance, sale and delivery by the Company to the Designated
Trust of the Corresponding Junior Subordinated Debt
Securities and the execution and delivery by the Company of
the Guarantee Agreement, in accordance with the Pricing
Agreement, have been obtained or made; provided, however,
that such counsel need not express any opinion with respect
to state securities laws;
(5) The execution and delivery by the Company of
the Company Agreements and the Pricing Agreement do not, and
the issuance, sale and delivery of the Corresponding Junior
Subordinated Debt Securities as contemplated by the
Prospectus as amended and supplemented and the performance
by the Company of its obligations under the Company
Agreements and the Pricing Agreement will not, violate the
Company's Certificate of Incorporation, as amended, or
By-Laws, in each case as in effect at the date of such
opinion, result in a default under or breach of certain
agreements listed in an annex to such opinion, in each case
as in effect at the date of such opinion, or violate any
existing Federal law of the United States or
22
law of the State of New York; provided, however, that such counsel
need not express any opinion with respect to Federal or state
securities laws, other antifraud laws, fraudulent transfer laws, the
Employee Retirement Income Security Act of 1974 and related laws and
laws that restrict transactions between United States persons and
citizens or residents of certain foreign countries; provided, further,
that insofar as performance by the Company of its obligations under
the Company Agreements and the Pricing Agreement is concerned, such
counsel need not express any opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights; and
(6) The Designated Trust is not an "investment company"
within the meaning of the Investment Company Act.
d) If the Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust, Xxxxxx Xxxxxxxx LLP, special Delaware
counsel to the Designated Trust and the Company (or, if specified in the Pricing
Agreement relating to such Designated Securities, such other special Delaware
counsel reasonably acceptable to the Representatives), shall have furnished to
the Representatives such written opinion or opinions, dated each Time of
Delivery for such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the laws of the State
of Delaware, 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 laws of the State of Delaware 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 legally binding
obligation of the Company and the trustees named therein, enforceable
against each of the Company and such trustees in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles;
iv) Under the laws of the State of Delaware and the Trust
Agreement, the Designated Trust has the power and authority to (a) execute
and deliver the Pricing Agreement and to perform its obligations under the
Pricing Agreement, and (b) issue and perform its obligations under the
Designated Securities and the Common Securities;
v) Under the laws of the State of Delaware and the Trust
Agreement, the execution and delivery by the Designated Trust of the
Pricing Agreement and the performance by the Designated Trust of its
obligations thereunder have been duly authorized by all necessary 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
23
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 certificates representing the Designated
Securities and the issuance of replacement certificates representing
the Designated Securities 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 have been duly authorized by the
Trust Agreement and are validly issued and represent beneficial
interests in the Designated Trust;
viii) Under the laws of the State of Delaware and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities is not subject to preemptive rights;
ix) The issuance and sale by the Designated Trust of the
Designated Securities and the Common Securities, the execution and
delivery of the Pricing Agreement and the performance by the Designated
Trust of 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 services provided within the State of Delaware
and has no assets, activities (other than maintaining the Delaware
Trustee (as defined in the Trust Agreement) 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. In rendering the opinion expressed in this
paragraph (10), 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 services provided 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 Designated 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.
e) If the Designated Securities are to be issued and sold to the
Underwriters by the Designated Trust, Xxxxxxxx & Xxxxxxxx, tax counsel for the
Designated Trust and the
24
Company, or other counsel designated by the Company reasonably acceptable to the
Representatives and specified in the applicable Pricing Agreement, shall have
furnished to the Representatives such written opinion, dated each Time of
Delivery for such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that such firm confirms its opinion set forth
in the Prospectus as amended or supplemented under the caption "Certain Federal
Income Tax Consequences" or a similar caption set forth therein.
f) If specified in the Pricing Agreement relating to the
Designated Securities, counsel for the Depositary or the applicable trustee
shall have furnished to the Representatives such written opinion or opinions,
dated each Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, as to such matters reasonably
requested by the Representatives and set forth in such Pricing Agreement.
g) At each Time of Delivery with respect to the Designated
Securities, Ernst & Young LLP (or, if specified in the Pricing Agreement
relating to such Designated Securities, one or more other independent
accountants reasonably acceptable to the Representatives) shall have furnished
to the Representatives a letter or letters, dated the date of delivery thereof,
in form and substance satisfactory to the Representatives, to the effect set
forth in Annex II hereto or as may otherwise be agreed in an additional schedule
to the Pricing Agreement with respect to such Designated Securities.
h) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended and
supplemented with respect to the Designated Securities as of the date of the
Pricing Agreement with respect to such 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 taken as a whole 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 taken as a whole, otherwise than as set forth or
contemplated in the Prospectus as so amended and supplemented, the effect of
which is in the Representatives' judgment after consultation with the Company so
material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus as so amended and supplemented.
i) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any downgrading in the
rating of any debt securities or preferred stock of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) of the rules and regulations of the Commission under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities or preferred stock of the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating).
j) 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 general moratorium on commercial banking activities
declared by either Federal or New York State
25
authorities; or (iii) an outbreak or escalation of hostilities or other calamity
or crisis having an adverse effect on the financial markets of the United
States, if the effect of any such event specified in this clause (iii) in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Securities.
k) If required by the Pricing Agreement relating to the Designated
Securities, the Designated Securities at the applicable Time of Delivery shall
have been duly listed, subject to notice of issuance, on the New York Stock
Exchange or other organization.
l) The Designated Trust, if applicable, 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, if applicable, and the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Designated Trust, if applicable, and the Company herein at and as of such Time
of Delivery, as to the performance by each of the Designated Trust, if
applicable, 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 7 and as to such other matters as the
Representatives may reasonably request.
m) If required by the Pricing Agreement relating to the Designated
Securities, any additional conditions to the purchase by the Underwriters of
Optional Designated Securities at the Subsequent Time of Delivery.
8) a) The Company and the Designated Trust, if applicable, will,
jointly and severally, indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, 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, the Registration Statement (or in any prior registration
statement to which the Prospectus, as a combined prospectus under Rule 429 of
the rules and regulations of the commission under the Act, relates) or the
Prospectus, 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 the
Company and such Designated Trust shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representative expressly for use therein.
26
b) Each Underwriter will indemnify and hold harmless the Company
and the Designated Trust, if applicable, against any losses, claims, damages or
liabilities to which the Company or such Designated Trust may become subject
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, the
Registration Statement or the Prospectus, 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, 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, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company or such Designated Trust, as the case may be, for any
legal or other expenses reasonably incurred by it 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 the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
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
prior written consent of the indemnified party effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is a
party and indemnity has been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
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 Company and the Designated Trust, if
applicable, on the one hand and the Underwriters on the other from the offering
of the Designated Securities. 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 subsection (c) above,
then each indemnifying party shall contribute to such
27
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 Company and such Designated Trust on the one hand and the
Underwriters 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 Company and such Designated Trust on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company and such Designated Trust bear to the total compensation received by
such Underwriters in connection with the offering of the Designated Securities,
in each case as set forth in the Prospectus as amended and supplemented with
respect to the Designated Securities. 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 Company and such Designated Trust on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and such Designated Trust and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation 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 Designated Securities purchased by it were
resold by it as contemplated in the Prospectus as amended and supplemented with
respect to the Designated Securities 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.
e) The obligations of the Company and the Designated Trust, if
applicable, under this Section 8 shall be in addition to any liability which the
Company or such Designated Trust 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 Company or such Designated Trust
and to each person, if any, who controls the Company or such Designated Trust
within the meaning of the Act.
9) a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or the Optional Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated 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 such Optional Designated Securities, as the case may
be, then the Designated Trust, if
28
applicable, and the Company 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 Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
such Designated Trust and the Company that they have so arranged for the
purchase of such Designated Securities, or such Designated Trust and the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or such Designated Trust and the
Company shall have the right to postpone the Time of Delivery for such
Designated 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 such Designated Trust and the Company agree 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 these Standard Provisions shall
include any person substituted under this Section 9 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, if applicable, and the Company as
provided in subsection (a) above, the aggregate number of such Designated
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 such Designated Trust and the Company 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, if applicable, and the Company 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 such Designated Trust and the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Firm Designated Securities or to exercise the Over-allotment Option
relating to such 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, as the case may be, shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, such Designated
Trust or the
29
Company, except for the expenses to be borne by such Designated Trust, 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, if applicable, the Company and the
several Underwriters, as set forth herein or made by or on behalf of them,
respectively, pursuant hereto, 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 such
Designated Trust, the Company, or any officer or director or controlling person
of such Designated Trust or the Company, and shall survive delivery of and
payment for the Designated Securities.
11) If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust, if
applicable, nor the Company shall then be under any liability to any Underwriter
with respect to the Firm Designated Securities or Optional Designated Securities
covered by such Pricing Agreement except as provided in Section 6 and Section 8
hereof; but, if for any other reason, Designated Securities are not delivered by
or on behalf of such Designated Trust or the Company as provided herein, such
Designated Trust and the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses, 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 such
Designated Trust and the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided in
Section 6 and Section 8 hereof.
12) In all dealings hereunder, the Representatives of the Underwriters
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, if applicable, or the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of such Designated Trust or the Company, as the case may be, 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 such Designated Trust and the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13) Each Pricing Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Designated Trust, if applicable, and the
Company and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of such Designated Trust or the Company and each person
who controls such Designated Trust, the Company or any Underwriter,
30
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of any
such Pricing Agreement. No purchaser of any of the Designated Securities from
any Underwriter shall be deemed a successor or assign by reason merely 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) EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16) Each Pricing Agreement may be executed by any one or more of the
parties 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.
31
ANNEX I
Form of Pricing Agreement
[Date]
To the Underwriters named in
Schedule I hereto (the "Underwriters")
c/o (Name(s) and Address(es) of Representative(s))
Ladies and Gentlemen:
The Bank of New York Company, Inc., a New York corporation (the
"Company"), and, if specified in Schedule II hereto, a statutory business trust
formed under the laws of the State of Delaware (the "Designated Trust"),
propose, subject to the terms and conditions stated herein and in the
Underwriting Agreement Standard Provisions (August 2002) (the "Standard
Provisions"), to issue and sell to the Underwriters the securities of the
Company or the Designated Trust specified in Schedule II hereto (the "[Firm]1
Designated Securities"). [The Firm Designated Securities and any Optional
Designated Securities the Underwriters may elect to purchase are herein referred
to as the "Designated Securities".]
Each of the provisions of the Standard Provisions is incorporated
herein by reference in its entirety and shall be deemed to be a part of this
Pricing Agreement to the same extent as if such provisions had been set forth in
full herein; 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. Each reference to the Representatives herein and in the provisions of
the Standard Provisions so incorporated by reference shall be deemed to refer to
you (it being understood that the term "Representatives" may also refer to a
single firm acting as sole representative of the Underwriters if so specified
herein or to Underwriters who will act without any firm being designated as
their representative). Unless otherwise defined herein, terms defined in the
Standard Provisions are used herein as therein defined. The Representatives
designated to act on behalf of themselves and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the Standard
Provisions and the address of the Representatives referred to in such Section 12
are set forth in Schedule II hereto.
An amendment to the 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.
_________________
/1/ The bracketed provisions contained in this form of Pricing Agreement shall
be included if the Company or the Designated Trust, as the case may be,
grants to the Underwriters the right to purchase at their election an
additional number of Designated Securities specified herein.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, [(a)] the Company or the
Designated Trust, as the case may be, agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company or the Designated Trust, as the case may be, 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 Company or the
Designated Trust, as the case may be, agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company or the Designated Trust, as the case may be, 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 Company or the Designated Trust, as the case may be, 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
Company or the Designated Trust, as the case may be, given within a period of __
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 Company or the Designated Trust, as the
case may be, otherwise agree in writing, no earlier than two or later than ten
business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign
and return to us ten 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 Standard Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company and, if applicable, the Designated Trust. 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 Company for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
I-2
Very truly yours,
THE BANK OF NEW YORK COMPANY, INC.
By:_______________________________
Name:
Title:
[NAME OF DESIGNATED TRUST, IF ANY
By: The Bank of New York Company, Inc.,
as Depositor
By:_______________________________
Name:
Title:]
Accepted as of the date hereof:
[Name(s) of Representative(s)]
As Representative(s) of the Underwriters
named in Schedule I hereto
__________________________
By:_______________________
Name:
Title:
On behalf of each of the Underwriters
named in Schedule I hereto
I-3
SCHEDULE I
(TO PRICING AGREEMENT)
Number of [Firm] [Number of Maximum
Designated Optional Designated
Securities to be Securities to be
Underwriter Purchased Purchased]
------------------------ ----------------- -------------------
----------- -----------
Total
=========== ===========
SCHEDULE II
(TO PRICING AGREEMENT)
Title of Designated Securities:
Aggregate Principal Amount or Number of Designated Securities:
[Firm] Designated Securities:
[Maximum Optional Designated Securities:]
Initial Public Offering Price of Designated Securities:
Purchase Price to the Underwriters of Designated Securities:
Compensation of Underwriters:
Form of Designated Securities:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC or such custodian.
Account for Payment of Purchase Price by Underwriters:
Registration Statement:
Initial Registration Statement File Number: 333-________
Rule 462(b) Registration Statement File Number, if any: 333-__________
Listing of Designated Securities:
Other Terms of Designated Securities (including any exchange or conversion
features thereof):
[First] Time of Delivery:
[Subsequent Time of Delivery:
The time and date specified in the notice to be delivered by the
Underwriters pursuant to Section 3 of the Standard Provisions.]
[Additional Closing Conditions to Purchase of Optional Designated Securities:]
Closing Location:
Name(s) and Address(es) of Representative(s):
If the Designated Securities are Depositary Shares:
Name of Depositary:
Deposit Agreement:
Depositary Shares Will Represent the Following Number of Shares of Preferred
Stock:
If the Designated Securities are Preferred Securities:
Designated Trust:
Trust Agreement:
S-2
Guarantee Agreement:
Expense Agreement:
Corresponding Junior Subordinated Debt Securities:
S-3
ANNEX II
Accountants' Letter
Pursuant to Section 7(g) of the Underwriting Agreement Standard
Provisions (August 2002), the Company's independent certified public accountants
shall furnish a letter or letters to the effect that:
i. They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
ii. In their opinion, the consolidated financial statements, and any
supplementary financial information and schedules 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 and the Exchange Act and the applicable published rules
and regulations thereunder; and they have made a review of the interim financial
information of the Company and its subsidiaries for the periods specified in
such letter in accordance with standards established by the American Institute
of Certified Public Accountants under SAS 71, Interim Financial Information;
iii. On the basis of limited procedures, not constituting an audit,
consisting of a limited review of the unaudited consolidated 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:
(1) the unaudited information with respect to the annual consolidated
results of operations and financial position for fiscal years which was included
or incorporated by reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year does not agree with the corresponding amount in the
audited consolidated financial statements for such fiscal years which was
included or incorporated by reference in the Company's Annual Reports on Form
10-K for the last three fiscal years;
(2) the unaudited information with respect to the annual consolidated
results of operations and financial position for such fiscal years which was
included or incorporated by reference in the Prospectus does not agree with the
corresponding amounts in the audited consolidated financial statements for such
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for the last three years;
(3) any material modifications should be made to the unaudited
consolidated financial statements included or incorporated by reference 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 and such unaudited consolidated financial statements do
not comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the applicable
published rules and regulations thereunder;
(4) any unaudited financial data included in the Prospectus as at any
time, or for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company do not agree with the
corresponding amounts in the unaudited consolidated financial statements from
which such data are derived;
(5) the unaudited financial data included in the Prospectus do not
agree with the corresponding amounts in the unaudited financial statements which
were not included in the Prospectus but from which were derived such financial
data;
(6) 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 audited financial statements 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 shareholders'
equity or allowance for loan losses, in each case as compared with amounts shown
in the latest consolidated statement of condition included or incorporated by
reference in the Prospectus except in each case for changes which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(7) for the period from the date of the latest complete consolidated
financial statements included or incorporated by reference in the Prospectus to
the specified date referred to in paragraph (6) above there were any decreases
in consolidated net interest income, net interest income after provision for
loan losses, or the net income of the Company, in each case as compared with the
comparable period of the preceding year, except in each case for decreases which
the Prospectus discloses have occurred or may occur or which are described in
such letter; and
iv. In addition to the examination referred to in their reports
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in subparagraph (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information specified by the Underwriters which are
derived from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by reference),
in exhibits to the Registration Statement specified by the Underwriters or in
documents incorporated by reference in the Prospectus specified by the
Underwriters, 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 as amended or supplemented (including the documents
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.
