Exhibit 1.1
DRAFT as of 1/16/97
FIRST EMPIRE CAPITAL TRUST I
5,000,000
_____% Capital Securities
(Liquidation Amount $25 per Capital Security)
by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
UNDERWRITING AGREEMENT
January __, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
First Empire Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and First Empire State Corporation, a New York
corporation (the "Corporation"), as depositor of the Trust and as guarantor,
propose, upon the terms and conditions set forth herein to issue and sell %
Capital Securities with an aggregate liquidation amount equal to $5,000,000 (the
"Capital Securities") to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
and ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (collectively, the "Underwriters"), for whom
you (the "Representative") are acting as representative.
The Capital Securities and Common Securities (as defined herein) are to
be issued pursuant to the terms of an Amended and Restated Trust Agreement dated
as of January __, 1997 (the "Trust Agreement"), among First Empire State
Corporation, a New York corporation (the "Corporation" and, together with the
Trust, the "Offerors"), as depositor, and Bankers Trust Company ("Trust
Company"), a New York banking corporation, as property trustee ("Property
Trustee") and Bankers Trust (Delaware) ("Trust Delaware"), a Delaware banking
corporation, as Delaware trustee ("Delaware Trustee") and the holders from time
to time of undivided interests in the assets of the Trust. The Capital
Securities will be guaranteed by the Corporation on a subordinated basis and
subject to certain limitations with respect to distributions and payments upon
liquidation, redemption or otherwise (the "Guarantee") pursuant to the Capital
Securities Guarantee Agreement dated as of January __, 1997 (the
"Guarantee Agreement"), between the Corporation and the Trust Company, as
Trustee (the "Guarantee Trustee"). The assets of the Trust will consist of ____%
Junior Subordinated Deferrable Interest Debentures, due February 1, 2027 (the
"Subordinated Debentures") of the Corporation which will be issued under an
indenture dated as of January __, 1997 (the "Indenture"), between the
Corporation and the Trust Company, as Trustee (the "Indenture Trustee"). Under
certain circumstances, the Subordinated Debentures will be distributable to the
holders of undivided beneficial interests in the assets of the Trust.
The Corporation and the Trust have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
___-_____) and a related preliminary prospectus for the registration of the
Capital Securities under the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations thereunder (the "Securities Act
Regulations"). The Corporation and the Trust have prepared and filed such
amendments thereto, if any, and such amended preliminary prospectuses, if any,
as may have been required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required.
The registration statement has been declared effective under the Securities Act
by the Commission. The registration statement as amended at the time it became
effective (including the Prospectus and the documents incorporated by reference
therein pursuant the section therein entitled "Incorporation of Certain
Documents by Reference" and all information deemed to be a part of the
registration statement at the time it became effective pursuant to Rule 430A(b)
of the Securities Act Regulations) is hereinafter called the "Registration
Statement," except that, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing Date (as
defined below), "Registration Statement" shall refer to such registration
statement as so amended. Each prospectus included in the registration statement,
or amendments thereof, before it became effective under the Securities Act and
any prospectus filed with the Commission by the Company with the consent of the
Underwriters pursuant to Rule 424(a) of the Securities Act Regulations
(including the documents incorporated by reference therein) is hereinafter
called the "Preliminary Prospectus." The term "Prospectus" means the final
prospectus (including the documents incorporated by reference therein), as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations. The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus. The Corporation hereby
agrees with the Underwriters as follows:
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1. Representation and Warranties. Each of the Offerors represents and
warrants to the Underwriters that as of the date hereof and on the Closing Date
(as hereinafter defined).
(a) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements thereto will, when they become effective or
are filed with the Commission, as the case may be, conform, in all material
respects with the requirements of the Securities Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with respect to the documents
incorporated by reference, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the applicable rules and regulations under said
acts; the Trust Agreement, the Guarantee Agreement, and the Indenture conform
with the requirements of the Trust Indenture Act, and the applicable rules and
regulations thereunder; the Registration Statement did not, and any amendment
thereto will not, in each case as of the applicable effective date, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made, not misleading; and the Prospectus and any
amendment or supplement thereto will not, as of the applicable filing date and
at the Closing Date (as hereinafter defined), contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Trust or the Corporation by or on behalf of
any Underwriter in writing expressly for use in the Registration Statement or
Prospectus.
(b) The documents incorporated by reference in the Prospectus
pursuant the section therein entitled "Incorporation of Certain Documents by
Reference," at the time they were filed with the Commission, complied in all
material respects with the requirements of the Securities Act, the Securities
Act Regulations, and did not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made, in
the light of the circumstances under which they were made, not misleading.
(c) Neither the Corporation nor the Trust is an open-end investment
company, unit investment trust or face-amount certificate company that is, or is
required to be, registered under Section 8 of the Investment Company Act of
1940, as amended (the "Investment Company Act"), nor is either a closed-end
investment company required to be registered but not registered thereunder.
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(d) Each report filed by the Corporation with the Securities and
Exchange Commission (the "SEC") under the Exchange Act, and the rules and
regulations promulgated thereunder, and incorporated by reference in the
Registration Statement, compiled when filed with the SEC as to form in all
material respects with the requirements of the Exchange Act and the applicable
rules and regulations thereunder.
(e) The Trust and the Company meet the requirements for the use of
Form S-3 under the Securities Act.
(f) The Commission has not issued an order preventing or suspending
the use of the Prospectus, nor instituted proceedings for that purpose.
2. Offering. The Representative has advised the Corporation that the
Underwriters will make an offering of the Capital Securities purchased by such
Underwriters hereunder on the terms and conditions set forth in the Registration
Statement as soon as practicable after this Agreement is entered into, as in the
Representative's sole judgment is advisable. The entire proceeds from the sale
of the Capital Securities will be combined with the entire proceeds from the
sale by the Trust to the Corporation of the Trust's common securities (the
"Common Securities"), and will be used by the Trust to purchase an equivalent
amount of the Subordinated Debentures.
3. Purchase and Delivery; Commission. The Trust hereby agrees to sell to
the Underwriters and each Underwriter, severally and not jointly, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase from the Trust the aggregate
liquidation amount of Capital Securities set forth opposite such Underwriter's
name on Schedule I hereto.
As compensation to the Underwriters for their commitments hereunder, and
in view of the fact that the proceeds of the sale of the Capital Securities will
be issued by the Trust to purchase the Subordinated Debentures of the
Corporation, the Corporation hereby agrees to pay at the Time of Delivery (as
defined below) to the Representative, for the accounts of the several
Underwriters, an amount equal to $_____ per Preferred Security for the Capital
Securities to be delivered at the Time of Delivery.
Except as set forth in the next paragraph, the Capital Securities to be
purchased by each Underwriter hereunder will be represented by one or more
definitive global Capital Securities in book entry form which will be deposited
by or on behalf of the Trust with The Depository Trust Company ("DTC") or its
designated custodian. The Trust will deliver the Capital Securities to the
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Representative, for the account of each Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks or fedwire, payable to the order of the Trust in
Federal (same day) funds, by causing DTC to credit the Capital Securities to the
account of the Representative at DTC. The Trust will cause the certificates
representing the Securities to be made available to the Representative for
checking at least 24 hours prior to the Time of Delivery (as defined below) at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be at the offices of Cravath,
Swaine & ▇▇▇▇▇, Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at
10:00 a.m, New York time, on January __, 1997 (the "Closing Date") or such other
time and date as the Representative, the Corporation and the Trust may agree
upon in writing. Such time and date are herein called the "Time of Delivery".
Such Capital Securities, if any, as the Representative may request upon at
least 48 hours' prior notice to the Trust (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by and on behalf of the
Trust to the Representative for the account of certain of the Underwriters,
against payment by or on behalf of such Underwriter of the purchase price
therefor by fedwire, payable to the order of the Trust in Federal (same day)
funds. The Trust will cause the certificates representing the Capital Securities
to be made available for checking and packaging at least 24 hours prior to the
Time of Delivery at the office of Trust Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
4. Conditions to Closing. The several obligations of the Underwriters to
purchase and pay for the Capital Securities will be subject to the following
conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 4(a); and at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued under the Securities Act or proceedings therefor
initiated or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with and there shall not have come to the
attention of the Underwriters any facts that would cause the Underwriters to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of the Capital Securities, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements made, in light of the circumstances existing at such time, not
misleading.
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(b) The Underwriters shall have received, on the Closing Date, a
certificate signed by the Chairman of the Board, the President, a Vice Chairman
of the Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Corporation, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement and this Agreement and that:
(i) the representations and warranties of the Corporation 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 Corporation has complied in all material
respects with all the agreements and satisfied in all material
respects all the conditions on its part to be performed or satisfied
at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements
included in the Registration Statement (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
Corporation and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Registration Statement
(exclusive of any supplement thereto).
(c) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof), there shall not have been any change, or any development
involving a prospective change, in or affecting the business or properties of
the Corporation and its subsidiaries the effect of which is, in the judgment of
the Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Capital
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof).
(d) The Underwriters shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, substantially in the form attached hereto as
Exhibit A.
In rendering such opinion, counsel may state that they are passing only on
matters of New York and United States Federal law. In rendering such opinion,
counsel may rely upon an opinion or opinions, each dated the Closing Date, of
other counsel retained by them or the Corporation as to laws of any jurisdiction
other than the United States or the State of New York, provided that (A) such
reliance is expressly authorized by each opinion so relied upon and a copy of
each such opinion is
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delivered to the Underwriters, and (B) counsel shall state in their opinion that
they and the Underwriters are justified in relying thereon. Insofar as such
opinions involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Corporation, its
subsidiaries and the Trust and certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the Corporation, substantially
in the form attached hereto as Exhibit B.
In rendering such opinion, such counsel may state that he is passing only
on matters of New York and United States Federal law. Insofar as such opinions
involve factual matters, such counsel may rely, to the extent such counsel deems
proper, upon certificates of officers of the Corporation, its subsidiaries and
the Trust and certificates of public officials.
(f) The Underwriters shall have received an opinion, dated the Closing
Date, of White & Case, counsel to the Trust Company and Trust Delaware,
substantially in the form attached hereto as Exhibit C.
(g) The Underwriters shall have received an opinion, dated the Closing
Date, of Cravath, Swaine & ▇▇▇▇▇, counsel to the Underwriters as to such matters
as the Underwriters shall reasonably request.
In rendering such opinion, counsel may rely upon an opinion or opinions,
each dated the Closing Date, of other counsel retained by them or the
Corporation as to laws of any jurisdiction other than the United States or the
State of New York, provided that (A) such reliance is expressly authorized by
each opinion so relied upon and a copy of each such opinion is delivered to the
Underwriters, and (B) counsel shall state in their opinion that they believe
that they and the Underwriters are justified in relying thereon. Insofar as such
opinions involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Corporation, its
subsidiaries and the Trust and certificates of public officials.
(h) The Underwriters shall have received an opinion, dated the Closing
Date, of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ , special Delaware counsel to the
Corporation and the Trust, substantially to the effect and in the form attached
hereto as Exhibit D.
(i) The Capital Securities shall have received a rating from each of
▇▇▇▇▇'▇ Investor Service, Inc. and Standard &
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Poor's Rating Services, each such rating to be not less than the rating set
forth in the Registration Statement.
(j) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance reasonably satisfactory to
them, from Price Waterhouse LLP independent public accountants, containing
statements and information of the type ordinarily included in accounts "comfort
letters" to underwriters with respect to the financial statements and certain
financial information, including the financial information contained or
incorporated by reference in the Registration Statement as identified by you.
(k) Prior to the Closing Date, the Corporation shall have furnished
to the Underwriters such further information, certificates and documents as the
Underwriters may reasonably request in connection with the offering of the
Capital Securities.
(l) No downgrading in the rating accorded the Capital Securities or
any other debt securities of the Corporation by any "nationally recognized
statistical rating organization" (as that term is defined by the SEC for the
purposes of Rule 436(g)(2) under the Securities Act) shall have occurred, or any
public announcement that any such organization has under surveillance or review
their ratings of the Capital Securities or any other debt securities of the
Corporation (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating), and
if, in any such case, the effect thereof in the reasonable judgment of the
Underwriters makes it impracticable or inadvisable to proceed with the purchase
of the Capital Securities.
5. Covenants of the Offerors. In further consideration of the agreements of
the Underwriters herein contained, the Offerors covenant as follows:
(a) The Trust and the Corporation will prepare the Prospectus in a
form approved by the Underwriters and will file such Prospectus with the
Commission pursuant to subparagraph (1) or (4) of Rule 424(b) not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement. The Trust will notify the Underwriters
immediately, and confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including any post-effective
amendment), and of the filing of the Prospectus pursuant to Rule 424(b), (ii) of
the receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of the
issuance by the
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Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification of the
securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for such purpose. The Trust and the Corporation
will make every reasonable effort to prevent the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Trust and the Corporation will deliver to the Underwriters one
manually executed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference into the Prospectus),
such number of conformed copies of the Registration Statement as originally
filed and of each amendment thereto (including documents incorporated by
reference into the Prospectus but without exhibits) as such Underwriters may
reasonably request and copies of each Preliminary Prospectus, the Prospectus and
any amended or supplemented Prospectus.
(c) The Trust and the Corporation will furnish to the Underwriters,
from time to time during the period when the Prospectus is required to be
delivered under the Securities Act, such number of copies of the Prospectus (as
amended or supplemented, if applicable) as they may reasonably request for the
purposes contemplated by the Securities Act or the Securities Act Regulations.
(d) The Trust and the Corporation will deliver to the Underwriters notice
of their intention to prepare or file any amendment to the Registration
Statement relating to the Capital Securities (including any post-effective
amendment) or any amendment or supplement to the Prospectus (other than
documents deemed to be incorporated by reference into the Prospectus) which the
Trust and the Corporation propose for use by the Underwriters in connection with
the offering of the Capital Securities and which differs from the prospectus on
file at the Commission at the time the Registration Statement becomes effective,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the Securities Act Regulations), will furnish the Underwriters and
counsel for the Underwriters with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file any such amendment or supplement or use any such
prospectus to which the Underwriters or counsel for the Underwriters shall
reasonably object.
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(e) If, during such period after the Closing Date and prior to the
date on which the distribution of Capital Securities by the Underwriters is
completed, any event shall occur as a result of which it is necessary, in the
opinion of the Offerors' counsel, to amend or supplement the Prospectus (as then
amended or supplemented) in order to ensure that the Prospectus does not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at the Corporation's own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances under which
they were made, be misleading or so that the Prospectus will comply with law, as
the case may be.
(f) The Trust and the Corporation, during the period when the
Prospectus is required to be delivered under the Securities Act, will file
promptly all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act subsequent to the time the Registration
Statement becomes effective.
(g) To endeavor to qualify the Capital Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any Underwriter
shall reasonably request and to pay all reasonable expenses (including
reasonable fees and disbursements of counsel) in connection with such
qualification and the printing of any memoranda concerning the aforesaid
qualification; provided, however, that neither Offeror shall be required to
qualify to do business in any jurisdiction where it is not now qualified or to
take any action which would subject it to general or unlimited service of
process in any jurisdiction where they are not now subject.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of (other than in an offering made exclusively outside the
United States) any securities of the Corporation or the Trust substantially
similar to the Capital Securities or any securities convertible into or
exchangeable for the Capital Securities without the prior written consent of the
Underwriters.
(i) During the period when the Capital Securities are outstanding,
the Corporation will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
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(j) Neither the Corporation nor the Trust shall enter into any
contractual agreement with respect to the distribution of the Capital Securities
except for the arrangements with the Underwriters.
(k) The Corporation will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning on the first day of the first full
fiscal quarter after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of the
Securities Act and Rule 158 of the Securities Act Regulations and will advise
you in writing when such statement has been so made available. If such fiscal
quarter is the last fiscal quarter of the Trust's fiscal year, such earnings
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(l) For a period of five years (but not beyond any such date on
which no Securities shall be outstanding) after the Closing Date, the Trust and
the Corporation will furnish to the Underwriters copies of all reports and
communications delivered to the Trust's shareholders or to holders of the
Capital Securities and will also furnish copies of all reports (excluding
exhibits) filed with the Commission on Forms 8-K, 10-Q and 10-K, and all other
reports and information furnished to its shareholders generally, not later than
the time such reports are first furnished to its shareholders generally.
6. Expenses. The Corporation covenants and agrees with the Underwriters
that the Corporation will, whether or not any sale of the Capital Securities is
consummated, pay or cause to be paid the following: (i) costs of preparation and
printing (including reasonable word processing and duplication costs) of the
Registration Statement and the Prospectus, and all amendments and supplements
thereto, (ii) all expenses (including reasonable fees and disbursements of
counsel to the Corporation and the Trust) payable pursuant to Section 5 of the
Agreement, (iii) all costs and expenses incurred in connection with the
preparation, issuance and delivery of the Capital Securities, (iv) the fees and
disbursements of the Corporation's accountants, (v) all costs and expenses
incurred in the preparation and the printing (including word processing and
duplication costs) of the Capital Securities, the Indenture, the Guarantee
Agreement, the Trust Agreement and all other documents relating to the issuance,
purchase and initial resale of the Capital Securities, (vi) all other costs and
expenses incident to the performance by the
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Corporation of its obligations hereunder which are not otherwise specifically
provided in this Section. The Underwriters shall be responsible for all of their
own expenses, including the fees of the Underwriters' counsel, any taxes on
resales of the Capital Securities by the Underwriters and the costs of assigning
a rating or ratings to the Capital Securities.
7. Indemnification and Contribution. (a) Each of the Corporation and the
Trust jointly and severally agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls each such Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission based upon information furnished in writing to the Corporation by
the Underwriters expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Capital Securities, or
any person controlling such Underwriter, if a copy of the Registration Statement
(as then amended or supplemented if the Corporation shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Capital Securities to such persons, and if the Registration Statement (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability. This indemnity agreement shall be in addition
to any liability that the Corporation or Trust may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Corporation, the Trust, any authorized representative of
the Corporation or the Trust and any person controlling the Corporation, to the
same extent as the foregoing indemnity from the Corporation and the Trust to the
Underwriters, but only with reference to information furnished in writing by
such Underwriter expressly for use in the Registration Statement and any
amendments or supplements thereto. The Corporation and the Trust each
acknowledge that the statements set forth in the last paragraph of the cover
page of
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the Prospectus and the last paragraph on page 5, the second and fifth paragraphs
under the caption "Underwriting" in the Prospectus constitute the only
information furnished in writing by or on behalf of the Underwriters for use in
the Registration Statement, and the Representative, confirms that such
statements are correct. This indemnity agreement shall be in addition to any
liability that any Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be threatened or instituted involving any person in respect
of which indemnity may be sought pursuant to paragraph (a) or (b) of this
Section 7, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing (but the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party other than
under this Section 7) and the indemnifying, party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and pay the reasonable 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 fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to 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 the representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. In the case of parties
indemnified pursuant to paragraph (a) of this Section 7, such separate firm
shall be designated in writing by the Representative. In the case of parties
indemnified pursuant to paragraph (b) of this Section 8, such separate firm
shall be designated in writing by the Corporation. 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 judgment 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.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then
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each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Corporation and the
Trust on the one hand and the Underwriters on the other from the offering of the
Capital Securities or (ii) if the allocation provided by clause (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 (i) above but also the relative
fault of the Corporation and the Trust on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Corporation and
the Trust on the one hand and the Underwriters on the other in connection with
the offering of such Capital Securities shall be deemed to be in the same
proportion as the total net proceeds (before deducting expenses) from the
offering of such Capital Securities received by the Corporation bear to the
total discounts and commissions received by such Underwriter in respect thereof.
The relative fault of the Corporation and the Trust on the one hand and of the
Underwriters on the other 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 Corporation and the Trust or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statements or omissions.
(e) The Corporation, the Trust and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the considerations referred to in paragraph (d) of this
Section 7. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) of this
Section 7 shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
(f) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Corporation, the Trust
and the Underwriters 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 a Underwriter or any person controlling
such Underwriter, or by or on behalf of
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the Trust or the Corporation, its directors or officers, any authorized
representative of the Corporation or the Trust or any person controlling the
Corporation or the Trust, and (iii) acceptance of and payment for any of the
Capital Securities.
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice to the Corporation, if
prior to the Closing Date (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iii) there shall have
occurred any material outbreak or 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 reasonable judgment of the Representative, impracticable
to market the Capital Securities or to enforce contracts for the resale of
Capital Securities.
9. Pro Rata Purchase in Certain Events. If on the Closing Date any one or
more of the Underwriters shall fail or refuse to purchase Capital Securities
that it or they have agreed to purchase hereunder and the aggregate liquidation
amount of Capital Securities that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate liquidation amount of Capital Securities to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions which the
aggregate liquidation amount of Capital Securities set forth opposite their
names in Schedule 1 to this Agreement bears to the aggregate liquidation amount
of Capital Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representative may specify, to
purchase the Capital Securities that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If on the Closing Date
any Underwriter or Underwriters shall fail or refuse to purchase Capital
Securities and the aggregate liquidation amount of Capital Securities with
respect to which such default occurs is more than one-tenth of the aggregate
liquidation amount of Capital Securities to be purchased on such date, and
arrangements satisfactory to the Representative and the Corporation for the
purchase of such Capital Securities are not made within 36 hours after such
default, this Agreement shall thereupon terminate without liability on the part
of any non-defaulting Underwriters or of the Corporation or the Trust. In any
such case either the Representative or the Corporation shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement or in any other
documents or arrangements
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may be effected. An action taken under this Section 10 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Reimbursement upon Termination in Certain Circumstances. If this
Agreement shall be terminated by the Underwriters or any of them, because of any
failure or refusal on the part of the Corporation to comply in any material
respect with the terms or to fulfill in any material respect any of the
conditions of this Agreement, or if for any reason the Corporation shall be
unable to perform in any material respect its obligations under this Agreement,
the Corporation shall reimburse the Underwriters or such Underwriters as have so
terminated the Agreement, with respect to themselves, severally, for all
reasonable out-of-pocket expenses reasonably incurred by such Underwriters in
connection with the offering of the Capital Securities.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Please confirm that the foregoing correctly sets forth the agreement among the
Trust, the Corporation and the several Underwriters by having an authorized
officer sign a copy of this Agreement in the space set forth below and by
returning the signed copy to us.
Very truly yours,
[_________________]
As representative of the several
Underwriters named in Schedule 1 hereto
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
Incorporated
By:__________________________
Name:
Title:
Accepted:
FIRST EMPIRE STATE CORPORATION
By:___________________________
Name:
Title:
FIRST EMPIRE CAPITAL TRUST I
By: FIRST EMPIRE STATE CORPORATION
on behalf of First Empire Capital Trust I
By:________________________________
Name:
Title:
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SCHEDULE 1
Underwriter Amount
----------- ------
Total $5,000,000
==========
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EXHIBIT A
The opinion of special counsel to the Corporation to be delivered pursuant to
Section 4(c) of the Underwriting Agreement shall be substantially to the effect
that:
1. The Underwriting Agreement has been duly authorized, executed and delivered
by the Corporation.
2. The Trust Agreement has been duly authorized, executed and delivered by the
Corporation, and is a valid and binding obligation of the Corporation,
enforceable against the Corporation in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
3. The Guarantee Agreement has been duly authorized, executed and delivered by
the Corporation and is a valid and binding obligation of the Corporation
enforceable against the Corporation in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
4. The Indenture has been duly authorized, executed and delivered by the
Corporation and is a valid and binding agreement of the Corporation, enforceable
against the Corporation in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
5. The Subordinated Debentures have been duly authorized, executed and delivered
by the Corporation and when duly authenticated in accordance with the Indenture
and delivered and paid for in accordance with the Underwriting Agreement, will
be valid and binding obligations of the Corporation, entitled to the benefits of
the Indenture and enforceable against the Corporation in accordance with their
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, readjustment of debt, moratorium,
fraudulent
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conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
6. The Trust is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in Investment Company Act of
1940, as amended.
7. The statements set forth in the Registration Statement under the captions
"Description of Capital Securities," "Description of Guarantee" and
"Relationship among the Capital Securities," the Junior Subordinated Debentures
and the Guarantee," insofar as they purport to describe the provisions of the
laws and documents referred to therein, fairly summarize the matters described
therein.
10. The Registration Statement was declared effective under the Securities Act
as of the date and time specified in such opinion and, to the best of such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
9. The statements of law or legal conclusions and opinions set forth in the
Registration Statement under the caption "Certain United States Federal Income
Tax Consequences," subject to the assumptions and conditions described therein,
constitute our
opinion.
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EXHIBIT B
The opinion of counsel to be delivered by the Corporation pursuant to Section
4(d) of the Underwriting Agreement shall be substantially to the effect that:
1. The Corporation is a corporation validly organized and presently subsisting
under the laws of the State of New York, with requisite corporate power and
authority to own its properties and conduct its business as described in the
Registration Statement, except for such power and authority the absence of which
would not have a material adverse effect on the Corporation, and is duly
registered as bank holding company under the Bank Holding Company Act of 1956,
as amended.
2. No consent, approval, authorization or order of any court or governmental
agency, authority, or body is required for the consummation by the Corporation
of the transactions contemplated by the Underwriting Agreement, except those
that have been obtained; it being understood that he expresses no opinion as to
the securities or Blue Sky laws of any jurisdiction.
3. The issuance and sale of the Capital Securities and the Subordinated
Debentures and the execution, delivery and performance by the Corporation and
the Trust of the Underwriting Agreement, the Indenture, the Guarantee Agreement
and the Trust Agreement will not violate the Articles of Incorporation or
by-laws of the Corporation, as amended to date, or any material agreement or
other instrument known to him to which the Corporation or the Trust is a party
or any material order or regulation known to him to be applicable to the
Corporation or the Trust of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Corporation.
Such counsel shall further state that nothing has come to him attention that has
caused him to believe that the Registration Statement (except for the financial
statements and schedules and other financial or statistical data contained or
incorporated therein, as to which he need express no belief), including the
documents incorporated by reference therein, as of the date of the Registration
Statement, contained, and as of the date of such opinion, contains any 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, in the light of the
circumstances under which they were made, not misleading.
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EXHIBIT C
The opinion of counsel to the Trust Company and Trust Delaware to be delivered
pursuant to Section 4(f) of the Underwriting Agreement shall be substantially to
the effect that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of New York.
2. Trust Delaware is duly incorporated and is validly existing in good standing
as a banking corporation with trust powers under the laws of the State of
Delaware.
3. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of the Indenture.
4. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
5. The Property Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
6. The Delaware Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
7. Each of the Indenture and the Guarantee Agreement has been duly executed and
delivered by the Indenture Trustee and the Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the Indenture Trustee and
the Guarantee Trustee, respectively, enforceable against the Indenture Trustee
and the Guarantee Trustee, respectively in accordance with its respective terms,
except that certain payment obligations may be enforceable solely against the
assets of the Trust and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws applicable to Delaware banking
corporations affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good
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faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
8. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
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EXHIBIT D
FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & ▇▇▇▇▇▇▇,
SPECIAL DELAWARE COUNSEL TO THE COMPANY AND
THE TRUST TO BE DELIVERED PURSUANT TO SECTION 7(e)
1. The Trust has been duly created and is validly existing in good standing as a
business trust under the Delaware Business Trust Act, 12 Del. C. ss. 3801 et
seq. (the "Delaware Act"), with the business trust power and authority to own
property and to conduct its business as described in the Registration Statement
and to enter into and perform its obligations under each of the Underwriting
Agreement, the Capital Securities, the Common Securities and the Trust
Agreement.
2. The Common Securities have been duly authorized by the Trust Agreement and,
when issued and delivered by the Trust to the Company in accordance with the
terms of the Trust Agreement against payment therefor in accordance with the
terms of the Registration Statement and as described in the Registration
Statement, will be validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial interests in the
assets of the trust. Under the Delaware Act and the Trust Agreement, the
issuance of the Common Securities is not subject to preemptive or other similar
rights. We note that the Holders of Common Securities will be subject to the
withholding provisions of Section 10.4 of the Trust Agreement, as set forth in
the Trust Agreement and will be liable for the debts and obligations of the
Trust to the extent provided in Section 9.1(b) of the Trust Agreement.
3. The Capital Securities have been duly authorized by the Trust Agreement and,
when issued and delivered in accordance with the terms of the Trust Agreement,
against payment of the consideration as set forth in the Underwriting Agreement,
the Capital Securities will be validly issued and (subject to the terms of the
Trust Agreement) fully and non-assessable undivided beneficial interest in the
assets of the Trust. The Holders of the Capital Securities will be entitled to
the benefits of the Trust Agreement (subject to the limitations set forth in
Paragraph 5 below) and will be entitled to the same limitation of personal
liability as extended to stockholders of private corporations for profit
organized under the Delaware General Corporation Law; provided that we express
no opinion as to any Holder of a Capital Security that is, was, or becomes a
named Trustee of the Trust. We note that the Holders of Capital Securities will
be subject to withholding provisions of Section of the Trust Agreement and will
be required to make
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payment or provide indemnity or security as set forth in the Trust Agreement.
4. All necessary trust action has been taken to duly authorize the execution and
delivery by the Trust of the Underwriting Agreement.
5. The Trust Agreement constitutes a valid and binding obligation of the Company
and the Regular Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, receivership, liquidation,
fraudulent conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and remedies, (ii)
general principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law) and (iii) considerations of public policy and
the effect of applicable law relating to fiduciary duties.
6. The issuance and sale by the Trust of the Securities, the purchase by the
Trust of the Subordinated Debentures, the execution, delivery and performance by
the Trust of the Underwriting Agreement, the consummation by the Trust of the
transactions contemplated by the Underwriting Agreement and the compliance by
the Trust with its obligations thereunder will not violate (i) any of the
provisions of the Certificate of Trust or the Trust Agreement or (ii) any
applicable Delaware law or administrative regulation.
7. Assuming that the Trust derives no income from or connected with services
provided within the State of Delaware and has no assets, activities (other than
having a Delaware Trustee as required by the Delaware Act and the filing of
documents with the Secretary of State of the State of Delaware) or employees in
the State of Delaware, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any Delaware court or
Delaware governmental authority or agency (other than as may be required under
the securities or blue sky laws of the State of Delaware as to which we express
no opinion) is necessary or required in connection with the due authorization,
execution and delivery of the Underwriting Agreement or the offering, issuance,
sale or delivery of the Capital Securities.
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