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EXHIBIT 99.1
STAR BANC CORPORATION
5 7/8% NOTES DUE 2003
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UNDERWRITING AGREEMENT
New York, New York
November 5, 1998
To the Representative
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Star Banc Corporation, an Ohio corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representative (the "Representative"), the principal
amount of its securities identified in Schedule I hereto (the "Securities"), to
be issued under an indenture (the "Indenture") dated as of March 1, 1997 between
the Company and Chase Manhattan Trust Company, N.A., as trustee (the "Trustee").
If the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and "Representative",
as used herein, each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is set forth
in Schedule I hereto), which has become effective, for the registration
under the Act of the Securities. Such registration statement, as amended
at the date of this Agreement, meets the requirements set forth in Rule
415(a)(1) under the Act and complies in all other material respects with
said Rule. The Company proposes to file with the Commission pursuant to
Rule 424 or Rule 434 under the Act a supplement to the form of prospectus
included in such registration statement relating to
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the Securities and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect
to the Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this Agreement,
is hereinafter called the "Registration Statement"; such prospectus in the
form in which it appears in the Registration Statement is hereinafter
called the "Basic Prospectus"; and such supplemented form of prospectus,
in the form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so supplemented)
is hereinafter called the "Final Prospectus". Any preliminary form of the
Final Prospectus which has heretofore been filed pursuant to Rule 424
hereinafter is called the "Preliminary Final Prospectus". Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, and the
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 or Rule 434 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and at the
Closing Date (as hereinafter defined), (i) the Registration Statement as
amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Exchange Act and the respective rules thereunder, (ii) the Registration
Statement, as amended as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading, and (iii) the Final Prospectus, as amended or supplemented
as of any such time, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (A)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee (Form T-1) under
the Trust
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Indenture Act of the Trustee or (B) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representative specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
(c) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant to
this Agreement, will constitute legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors"
rights generally and general principles of equity.
(d) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Securities, will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken
as a whole, or any judgment order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Indenture or the
Securities, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Securities.
(e) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Final Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(f) There are no material legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Final Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Final Prospectus or
to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
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2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Representative and the
Company or as provided in Section 8 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representative for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representative of the purchase price thereof in the manner set forth in
Schedule I hereto. Unless otherwise agreed, certificates for the Securities
shall be in the form set forth in Schedule I hereto, and such certificates shall
be deposited with the Paying Agent, Security Registrar and Transfer Agent as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 or Rule 434 via the Electronic Data
Gathering, Analysis and Retrieval System. The Company will advise the
Representative promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when any
amendment to the Registration Statement relating to the Securities shall
have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to
the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as
a result of which the Final Prospectus
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as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file
with the Commission, subject to the first sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representative as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representative and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the Representative may
reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representative may reasonably designate, will maintain such qualifications
in effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that the Company
shall not be required to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would subject it to
general or unlimited service of process of any jurisdiction where it is
not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representative, offer or
sell, or announce the offering of, any securities covered by the
Registration Statement or by any other registration statement filed under
the Act.
(g) During the period beginning on the date hereof and
continuing to and including the Closing Date, the Company will not offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than (i) the Securities and
(ii)
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commercial paper issued in the ordinary course of business), without the
prior written consent of the Representative.
(h) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company"s counsel and the Company"s
accountants in connection with the registration and delivery of the
Securities under the Act and all other fees or expenses in connection with
the preparation and filing of the Registration Statement, any Preliminary
Final Prospectus, the Final Prospectus and amendments and supplements to
any of the foregoing, including all printing costs associated therewith,
and the mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities heretofore specified, (ii) all costs and
expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii)
the cost of printing or producing any Blue Sky or legal investment
memorandum in connection with the offer and sale of the Securities under
state law and all expenses in connection with the qualification of the
Securities for offer and sale under state law, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
legal investment memorandum, (iv) the fees and disbursements of the
Company"s counsel and accountants and of the Trustee and its counsel, (v)
any fees charged by the rating agencies for the rating of the Securities
and (vi) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided
in this Section, Section 6 entitled "Reimbursement of Underwriters"
Expenses" and Section 7 entitled "Indemnification and Contribution", the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, and any advertising expenses connected
with any offers they may make. Notwithstanding the foregoing, if the
transactions contemplated in this Agreement are consummated, then the
Underwriters agree to reimburse the Company for certain of the Company"s
expenses incurred in connection with this Agreement in an amount mutually
agreed to by the Company and the Underwriters. Such reimbursement of
expense shall be shared among the Underwriters pro rata in accordance with
the principal amount of the Securities set forth opposite such
Underwriters" names in Schedule II hereto.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the
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provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or mailed for
filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the Representative the
opinion of Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, dated
the Closing Date, to the effect of paragraphs (i), (iv) and (v) through
(xi) below, and the opinion of Xxxxxx X. Xxxxxxx, General Counsel to the
Company, dated the Closing Date, to the effect of paragraphs (ii) and
(iii) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of Ohio,
has the corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and is
duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended; Star Bank N.A. (or the successors
to such entity) (the "Subsidiary") is a national banking association
formed under the laws of the United States and authorized thereunder
to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the Subsidiary
is required to be qualified or licensed to do business as a foreign
corporation in any jurisdiction;
(iii) all the outstanding shares of capital stock of the
Subsidiary have been duly and validly authorized and issued and are
fully paid and (except as provided in 12 U.S.C. ss. 55, as amended)
nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the
Subsidiaries (except directors' qualifying shares) are owned,
directly or indirectly, by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the Securities conform in all material respects to
the description thereof contained in the Final Prospectus;
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(v) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act,
and constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and further subject to 12 U.S.C.
1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy); and the Securities have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and further subject to 12 U.S.C.
1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy);
(vi) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required;
(vii) the Registration Statement has become effective
under the Act; to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical information
contained therein or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder; and such
counsel has no reason to believe that the Registration Statement or
any amendment thereof at the time it 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 Final
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Prospectus, as amended or supplemented, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(viii) this Agreement has been duly authorized, executed
and delivered by the Company and constitutes the legal, valid and
binding instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles
that may limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be limited
by federal and state securities laws, and further subject to 12
U.S.C. 1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy);
(ix) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as have been
obtained;
(x) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein
contemplated will conflict with, result in a breach of, or
constitute a default under the articles of incorporation or by-laws
of the Company or, to the best knowledge of such counsel, the terms
of any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is a
party or bound, or any order or regulation known to such counsel to
be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
affiliates; and
(xi) to the best knowledge and information of such
counsel, each holder of securities of the Company having rights to
the registration of such securities under the Registration Statement
has waived such rights or such rights have expired by reason of
lapse of time following notification of the Company's intention to
file the Registration Statement.
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In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Ohio or the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Underwriters; and (B) as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale of
the Securities, the Indenture, the Registration Statement, the Final
Prospectus and other related matters as the Representative may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board and Chief
Executive Officer or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that
to the best of their knowledge:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial
statements contained or included by reference in the Final
Prospectus, there has been no material adverse change in the
condition (financial or other), earnings, business or properties of
the Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus.
(e) The Representative shall have received on the Closing Date
a letter, dated the Closing Date, in form and substance satisfactory to
the Representative, from Xxxxxx Xxxxxxxx LLP, the Company"s independent
public accountants, containing statements and information of the type
ordinarily included in accountants" "comfort
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letters" to underwriter"s with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Final Prospectus.
(f) The Representative shall have received on the Closing Date
a letter, dated the Closing Date, in form and substance satisfactory to
the Representative, from KPMG Peat Marwick LLP, Firstar Corporation"s
independent public accountants, containing statements and information of
the type ordinarily included in accountants" "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Final Prospectus.
(g) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date there shall not have occurred any
downgrading, nor shall an notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded any
of the Company"s securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Act.
(h) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, there
shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraphs (e) or (f) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or affecting
the earnings, business or properties of the Company, Firstar Corporation
or their respective subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the Representative,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Securities as
contemplated by the Registration Statement and the Final Prospectus.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates and
documents as the Representative may reasonably request.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representative and
its counsel, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by
the Representative. Notice of such cancellation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the
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Underwriters set forth in Section 5 hereof is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, the Preliminary Final Prospectus or the Final Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly or use therein. It is understood and agreed that the
only information relating to any Underwriter furnished to the Company by the
Underwriters for inclusion in the Final Prospectus consists of the following
information in the Final Prospectus: (i) the last paragraph at the bottom of the
cover page concerning delivery of the Securities and (ii) the sixth paragraph
under the caption "Underwriters" concerning stabilization.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from
the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use in the
Registration Statement, the Preliminary Final Prospectus, the Final
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 7(a) or 7(b),
such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified
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party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of
which cases, the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party. It is understood
that the indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing
by the Representative, in the case of parties indemnified pursuant to
Section 7(a) above, and by the Company, in the case of parties indemnified
pursuant to Section 7(b) above. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgement for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. 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 or could have been a 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) To the extent the indemnification provided for in Section 7(a)
or 7(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
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damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii)
if the allocation provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities shall be deemed to be in
the same respective proportions as the net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Final Prospectus, bear to the aggregate "Price to Public" of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other hand 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 or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Underwriters"
respective obligations to contribute pursuant to this Section 7 are
several in proportion to the respective principal amounts of Securities
they have purchased hereunder, and not joint.
(e) The Company and the Underwriter agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provision of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages that 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
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(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for
any of the Securities.
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) trading of and securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a banking
moratorium shall have been declared either by Federal, Ohio State or New York
State authorities or (iv) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and
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of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Section 6 and 7 hereof and
this Section 10 shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto, with a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attn: Xxx Xxxxxxxx, Esq. or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at 000
Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attn: Xxxxx Xxxxxxx.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
STAR BANC CORPORATION
By:_________________________
Name:
Title:
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The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
XXXXXX XXXXXXX & CO. INCORPORATED
By:__________________________
Name:
Title:
For themselves and the other several
Underwriters, named in Schedule II to the
foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated November 5, 1998
Registration Statement No. 333-20133
Representative: Xxxxxx Xxxxxxx & Co. Incorporated
Address of Representative: 0000 Xxxxxxxx, Xxx Xxxx, X.X.
Title, Purchase Price and Description of Securities:
Title: 5 7/8% Notes Due 2003
Principal amount: $100,000,000
Purchase price (include type of funds and accrued interest or amortization, if
applicable): 99.500%; in federal (same day) funds or wire transfer to an account
previously designated to the Representative by the Company or, if agreed to by
the Representative and the Company, by certified or official bank check or
checks.
Sinking fund provisions: N/A
Redemption provisions: N/A
Other provisions: N/A
Closing Date, Time and Location: 9:30 a.m., New York City time, on November 12,
1998 at the Offices of Xxxxxxx Xxxxxxx & Xxxxxxxx; 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx
Listing: N/A
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SCHEDULE II
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
Xxxxxx Xxxxxxx & Co. Incorporated ................................ $70,000,000
Chase Securities Inc.............................................. 30,000,000
------------
Total....................................................... $100,000,000
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