BANK OF AMERICA CORPORATION UNDERWRITING AGREEMENT 6,000,000 Depositary Shares, Each Representing a 1/25th Interest in a Share of Fixed-to-Floating Rate Non- Cumulative Preferred Stock, Series K
BANK OF AMERICA CORPORATION
UNDERWRITING
AGREEMENT
6,000,000 Depositary Shares, Each Representing a 1/25th Interest in a Share of Fixed-to-Floating
Rate Non-Cumulative Preferred Stock, Series K
New
York, New York
January 24, 2008
To the Representative
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Ladies and Gentlemen:
Bank of America Corporation, a Delaware corporation (the "Company"), proposes to issue and sell to the underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representative (the "Representative"), 6,000,000 depositary shares (the "Depositary Shares"), each representing a 1/25th interest in a share of the Company's perpetual Fixed-to-Floating Rate Non-Cumulative Preferred Stock, Series K (the "Preferred Stock"). The Preferred Stock, when issued, will be deposited against delivery of Depositary Receipts (the "Depositary Receipts"), which will evidence the Depositary Shares, that are to be issued by Computershare Trust Company, N.A., as depository (the "Depository") under the Deposit Agreement dated January 24, 2008 by and among the Company, Computershare Inc., the Depository and the holders from time to time of the Depositary Receipts described therein (the "Deposit Agreement").
The Depositary Shares are also referred to herein as the "Shares" and, where appropriate herein, reference to the Shares includes the underlying shares of Preferred Stock. Such Depositary Shares are to be sold to each Underwriter, acting severally and not jointly, in such amounts as are listed in Schedule II opposite the name of each Underwriter. The Shares are described more fully in the Prospectus, referred to below. If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representative," as used herein, each shall be deemed to refer to such firm or firms.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each Underwriter that:
(i) The
Company has prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-133852),
which contains a base prospectus (the "Base Prospectus"), to be used
in connection with the public offering and sale of the Shares. Such
registration statement, as amended, including the financial statements,
exhibits and schedules thereto, including any required information deemed to be
a part thereof pursuant to Rule 430B under the Securities Act of 1933,
as
amended, and the rules and regulations promulgated thereunder (collectively,
the "Securities Act"), and the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (collectively,
the "Exchange Act"), at each time of effectiveness, is called the "Registration
Statement." Any preliminary prospectus supplement to the Base Prospectus
that describes the Shares and the offering thereof and is used prior to filing
of the Prospectus is called, together with the Base Prospectus, a "preliminary
prospectus." The term "Prospectus" shall mean the final prospectus
supplement relating to the Shares, together with the Base Prospectus, that is
first filed pursuant to Rule 424(b) after the date and time that this Agreement
is executed and delivered by the parties hereto (the "Execution Time").
Any reference herein to the Registration Statement, any preliminary prospectus
or the Prospectus, as the case may be, shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S‑3
under the Securities Act; any reference to any amendment or supplement to any
preliminary prospectus or the Prospectus, as the case may be, shall be deemed
to refer to and include any documents filed after the date of such preliminary
prospectus or Prospectus, as the case may be, under the Exchange Act, and
incorporated by reference in such preliminary prospectus or Prospectus, as the
case may be; and any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in the Registration
Statement. All references in this Agreement to the Registration Statement, a
preliminary prospectus, the Prospectus, or any amendments or supplements to any
of the foregoing shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System ("▇▇▇▇▇").
(ii) The term "Disclosure Package" shall mean (A) the preliminary prospectus, as it may be amended or supplemented, (B) the Base Prospectus, (C) the applicable issuer free writing prospectuses as defined in Rule 433 under the Securities Act (each, an "Issuer Free Writing Prospectus"), if any, identified in Schedule III hereto, and (D) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of 5:30 p.m. (Eastern time) on the date of this Agreement (the "Initial Sale Time"), the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for use therein, it being understood and agreed that such information furnished by or on behalf of any Underwriter consists only of the information described as such in Section 7(b) hereof (the "Underwriter Information").
(iii) As
of the date hereof, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) under the Securities Act, when any supplement or
amendment to the Prospectus is filed with the Commission, at the Closing Date
(as hereinafter defined) and, with respect to the Registration Statement in (A)
and (B) below, as of the Initial Sale Time, (A) the Registration Statement is
effective, the Registration Statement, as amended as of any such time, and the
Prospectus, as amended or supplemented as of any such time complied, complies
or will comply in all material respects with the applicable provisions under
the Securities Act and the Exchange Act, (B) the Registration Statement, as
amended as of any such
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time, did not, does not and 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 (C) the Prospectus, as amended or supplemented as of any such
time, did not, does not and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to the Underwriter
Information. The documents which are incorporated by reference in the
Registration Statement, the Disclosure Package, the preliminary prospectus or
the Prospectus or from which information is so incorporated by reference, when
they were filed with the Commission, complied in all material respects with the
requirements under the Securities Act or the Exchange Act, as applicable, and
did not, when such documents were so filed, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Commission has not issued any
stop order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of the preliminary prospectus or the
Prospectus, and the Company is without knowledge that any proceedings have been
instituted for either purpose.
(iv) (A) At the earliest time after the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) and (B) as of the date of the execution and delivery of this Agreement (with such date being used as a determination date for purposes of this clause (B)), the Company neither was nor is an Ineligible Issuer (as defined in Rule 405 under the Securities Act).
(v) No Issuer Free Writing Prospectus (including any Final Term Sheet (as defined herein)), as of its date and at all subsequent times through the completion of the offering contemplated hereby or until any earlier date that the Company notified or notifies the Representative as described in the next sentence, included, includes or will include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, including any document incorporated by reference therein, the preliminary prospectus or the Prospectus, that had not or has not been superseded or modified. If at any time following issuance of an Issuer Free Writing Prospectus and prior to the end of the Prospectus Delivery Period (as defined below), there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the preliminary prospectus or the Prospectus, the Company has promptly notified or will promptly notify the Representative and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from an Issuer Free Writing Prospectus based upon and in conformity with Underwriter Information.
(vi) The
Company has not distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Underwriters' distribution of the Shares,
any offering material in connection with the offering and sale of the Shares
other than the Registration Statement, the preliminary prospectus, the
Prospectus or any Issuer Free Writing Prospectus reviewed and consented to by
the Underwriters and included in Schedule III hereto.
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(vii) (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) under the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act, and (D) at the Execution Time (with such date being used as the determination date for purposes of this clause (D)), the Company was and is a "well‑known seasoned issuer" as defined in Rule 405 under the Securities Act. The Registration Statement is an "automatic shelf registration statement," as defined in Rule 405 under the Securities Act, the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration statement form.
(viii) The Deposit Agreement has been duly authorized and, when validly executed and delivered by the Company, assuming due authorization, execution and delivery by the other parties thereto, will constitute a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy; the Depositary Shares are entitled to the benefits of the Deposit Agreement; and such Deposit Agreement will conform to the description thereof in the Disclosure Package and the Prospectus.
(ix) The Preferred Stock and the Depositary Shares have been duly and validly authorized for issuance and sale, and, when the Shares are issued and delivered against payment therefor pursuant to this Agreement, the Preferred Stock and the Depositary Shares will be duly and validly issued and fully paid and non-assessable; all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and upon deposit of the Preferred Stock with the Depository pursuant to the Deposit Agreement and the due execution by the Depository of the Deposit Agreement and the Depositary Receipts, in accordance with the Deposit Agreement, such Depositary Shares will represent legal and valid interests in the Preferred Stock; and the Preferred Stock and the Depositary Shares conform to the description thereof contained in the Registration Statement and Prospectus, as amended or supplemented.
(x) The
issue and sale of the Preferred Stock and the Depositary Shares and the
compliance by the Company with all of the provisions thereof and of this Agreement
and the Deposit Agreement, and the consummation of the transactions herein and
therein contemplated, and the performance of its obligations hereunder and
thereunder, will not contravene any provision of applicable law, the
certificate of incorporation or bylaws of the Company or articles of
association or bylaws of the Principal Subsidiary Bank or any agreement or
other instrument binding upon the Company or the Principal Subsidiary Bank that
is material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any
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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 or
regulatory body is required for the performance by the Company of its
obligations under this Agreement or the Deposit Agreement, 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 Shares.
(b) Each Underwriter, severally and not jointly, represents and agrees that:
(i) it has not and will not, directly or indirectly, offer, sell or deliver any of the Depositary Shares or distribute the preliminary prospectus, the Prospectus or any other offering materials (including any Issuer Free Writing Prospectus or other free writing prospectuses) relating to the Shares in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance with any applicable laws and regulations thereof and that, to the best of its knowledge and belief, will not impose any obligations on the Company except as set forth herein; and
(ii) it will comply in all material respects with the selling restrictions set forth in the Prospectus under the caption "Underwriting-Selling Restrictions."
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 respective number of Shares set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Shares 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 hereto (such date and time of delivery and payment for the Shares being herein called the "Closing Date"). Delivery of the Shares 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, Depositary Receipts for the Depositary Shares shall be in book-entry form, and such Depositary Receipts may be deposited with The Depository Trust Company ("DTC") or a custodian for DTC and registered in the name of Cede & Co., as nominee for DTC.
4. Agreements. The Company agrees with the several Underwriters that:
(a) During
the period beginning at the Initial Sale Time and ending on the later of the
Closing Date or such date, as in the opinion of counsel for the Underwriters,
the Prospectus is no longer required by law to be delivered in connection with
sales by an Underwriter or dealer (except for delivery requirements imposed
because such Underwriter or dealer is an affiliate of the Company), including
in circumstances where such requirement may be satisfied pursuant to Rule 172
(the "Prospectus Delivery Period"), the Company will not file any
amendment to the Registration Statement or supplement to the Base Prospectus or
the Disclosure Package (including the 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
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which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Prospectus to be filed with
the Commission pursuant to Rule 424 via ▇▇▇▇▇. The Company will advise the Representative
promptly (i) when the preliminary prospectus and the Prospectus shall have been
filed with the Commission pursuant to Rule 424, (ii) when any amendment to the
Registration Statement or the Disclosure Package relating to the Shares 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 Prospectus
or the Disclosure Package 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 Shares 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 during the Prospectus Delivery Period, except with respect to any such delivery requirement imposed upon an affiliate of the Company in connection with any secondary market sales, any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus to comply with the Securities Act or the Exchange Act, the Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance (including, if consented to by the Underwriters, by means of an Issuer Free Writing Prospectus), and will give immediate notice, and confirm in writing, to the Underwriters to cease the solicitation of offers to purchase the Depositary Shares, and furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(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 under the Securities 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 Securities Act, as many copies of the preliminary
prospectus or the Prospectus and any amendments thereof and supplements thereto
as the Representative may reasonably request. The Company will pay the
expenses of printing all documents relating to the offering.
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(e) The Company will arrange for the qualification of the Depositary Shares 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 Depositary Shares and will arrange for the determination of the legality of the Depositary Shares for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the Company will not, without the consent of the 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 Securities Act; provided, however, the Company may, at any time, offer or sell or announce the offering of securities (i) covered by a registration statement on Form S-8 or (ii) covered by a registration statement on Form S-3 and (A) pursuant to which the Company issues securities under one of the Company's medium-term note programs (including, without limitation, the Company's Series K Medium-Term Note Program and the Company's InterNotes Program), (B) pursuant to which the Company issues securities for its dividend reinvestment plan, (C) pursuant to which the Company issues notes, another series of depositary shares or another series of preferred stock in an underwritten offering in which the lead manager is Banc of America Securities LLC (under the Registration Statement No. 333-133852) or (D) pursuant to which affiliates of the Company offer securities of the Company in secondary market transactions.
(g) The Company will prepare a final term sheet containing only a description of the Shares, in a form approved by the Representative and contained in Schedule IV of this Agreement, and will file the such term sheet pursuant to Rule 433(d) under the Securities Act as promptly as possible, but in any case not later than the time required by such rule (such term sheet, the "Final Term Sheet").
(h) The
Company represents that it has not made and agrees that, unless it obtains the
prior written consent of the Representative, it will not make any offer
relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a "free writing prospectus" (as
defined in Rule 405 under the Securities Act) required to be filed by the
Company with the Commission or retained by the Company under Rule 433 under the
Securities Act; provided that the prior written consent of the Representative
shall be deemed to have been given in respect of the Issuer Free Writing
Prospectuses included in Schedule III hereto. Any such free writing prospectus
consented to by the Representative is hereinafter referred to as a "Permitted
Free Writing Prospectus." The Company agrees that (i) it has treated and
will treat as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, and (ii) it has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 under the
Securities Act applicable to any Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and record keeping.
The Company consents to the use by any Underwriter of a free writing prospectus
that (a) is not an "issuer free writing prospectus" as defined in
Rule 433, and (b) contains only (i) information describing the preliminary
terms of the Shares or their offering, (ii) information permitted by Rule 134
under the Securities Act or (iii) information that describes the
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final
terms of the Shares or their offering and that is included in the Final Term
Sheet of the Company contemplated in paragraph (g) above.
(i) If immediately prior to the third anniversary (the "Renewal Deadline") of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Underwriters, the Company will file prior to the Renewal Deadline, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Representative. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will file prior to the Renewal Deadline, if it has not already done so, a new shelf registration statement relating to the Shares, in a form satisfactory to the Representative, and will use its best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement relating to the Shares. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
(j) If at any time when Shares remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representative, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Shares, in a form satisfactory to the Representative, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representative of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
(k) The Company agrees to pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
5. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Shares shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy of the statements of the Company made in any certificates furnished pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) For
the period from and after effectiveness of this Agreement and prior to the
Closing Date:
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(i) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission, and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Shares are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Representative prior to the Closing Date);
(ii) the Company shall have filed the preliminary prospectus and the Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iv) the Financial Industry Regulatory Authority, Inc. ("FINRA") shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(b) The Company shall have furnished to the Representative the opinion of ▇▇▇▇▇ Mulliss & Wicker, PLLC, counsel for the Company, dated the Closing Date, to the effect of paragraphs (i) and (v) through (xiii) below, and the opinion of the General Counsel of the Company (or such other attorney, reasonably acceptable to counsel to the Underwriters, who exercises general supervision or review in connection with a particular securities law matter for the Company), dated the Closing Date, to the effect of paragraphs (ii) through (iv) below:
(i) the Company is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; Bank of America, N.A. (the "Principal Subsidiary Bank") is a national banking association formed under the laws of the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is qualified or licensed to do business as a foreign corporation in any jurisdiction in which such counsel has knowledge that the Company or the Principal Subsidiary Bank, as the case may be, is required to be so qualified or licensed;
(iii) all
the outstanding shares of capital stock of the Principal Subsidiary Bank have
been duly and validly authorized and issued and are fully paid and (except
9
as
provided in 12 U.S.C. § 55, as amended) nonassessable, and, except as
otherwise set forth in the Disclosure Package and the Prospectus, all
outstanding shares of capital stock of the Principal Subsidiary Bank (except
directors' qualifying shares) are owned, directly or indirectly, by the Company
free and clear of any perfected security interest and such counsel is without
knowledge of any other security interests, claims, liens or encumbrances;
(iv) such counsel is without knowledge that there is (1) any pending or threatened action, suit or proceeding before or by any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus which is omitted or not adequately disclosed therein, or (2) any franchise, contract or other document of a character required to be described in the Registration Statement, the Disclosure Package or the Prospectus, or to be filed as an exhibit to the Registration Statement, is not so described or filed as required;
(v) the Deposit Agreement, the Depositary Shares and the Preferred Stock conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus;
(vi) the Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, has been issued, and such counsel is without knowledge that any proceeding for that purpose has been instituted or threatened, or that the Company has received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form; and the Registration Statement, the Disclosure Package and the 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 under the Securities Act and the Exchange Act;
(vii) this Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by you, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy;
(viii) no
consent, approval, authorization or order of any court or governmental agency or
body in the United States is necessary or required on behalf of the Company for
the consummation of the transactions contemplated herein, except such as have
been obtained under the Securities Act and such as may be required under the
blue sky, state securities or insurance or similar laws of the United States in
connection with the purchase and
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distribution of the Depositary Shares by the
Underwriters and such other approvals (specified in such opinion) as have been
obtained;
(ix) the shares of Preferred Stock have been duly authorized and, when paid for as contemplated herein, will be duly issued, fully paid and nonassessable;
(x) the Depositary Shares have been duly and validly authorized for issuance and sale, and, when issued and delivered against payment therefor pursuant to this Agreement, the Depositary Shares will be duly and validly issued and fully paid and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been validly and sufficiently taken and the Depositary Shares represent legal and valid interests in the Preferred Stock;
(xi) neither the issuance and sale of the Preferred Stock or the Depositary Shares, nor the consummation of any other of the transactions herein contemplated or contemplated by the Deposit Agreement nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under (1) the certificate of incorporation or by-laws of the Company, each as amended to date, (2) the terms of any indenture or other material agreement or instrument known to such counsel and to which the Company or the Principal Subsidiary Bank is a party or bound, or (3) any order, law or regulation known to such counsel to be applicable to the Company or the Principal Subsidiary Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Principal Subsidiary Bank;
(xii) the Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and further subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy; and
(xiii) such counsel is without knowledge of any rights to the registration of securities of the Company under the Registration Statement which have not been waived by the holders of such rights or which have not expired by reason of lapse of time following notification of the Company's intention to file the Registration Statement.
In rendering
such opinion, but without opining in connection therewith, such counsel also
shall state that, although it expresses no view as to portions of the
Registration Statement, the Disclosure Package, or the Prospectus consisting of
financial statements and other financial, accounting and statistical
information and it has not independently verified, is not passing upon and
assumes no responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Disclosure Package, or the
Prospectus or any amendment or supplement thereto (other than as stated in (v)
above), it has no reason to believe that such remaining portions of the
Registration Statement or any amendment thereto as of the time it became
effective, as of the Initial Sale Time or as of the date of such opinion,
contained
11
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, subject to the foregoing with respect to
financial statements and other financial, accounting and statistical
information, the Disclosure Package, taken as a whole, as of the Initial Sale
Time, contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statement therein, in light of the
circumstances under which they were made, not misleading, or that the
Prospectus, as amended or supplemented, as of its date or as of the date of
such opinion contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Such counsel also need not pass upon nor
assume any responsibility for ascertaining whether or when any of the
information contained in each Disclosure Package was conveyed to any purchaser
of the Depositary Shares.
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of North Carolina, the United States, or the General Corporation Law of the State of Delaware to the extent deemed proper and specified in such opinion, upon the opinion of counsel to the Underwriters, or upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries and public officials.
(c) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and any 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 any Senior Vice President or Treasurer or any other authorized officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and this Agreement and they are without knowledge that:
(i) the representations and warranties of the Company in this Agreement are not true and correct with the same force and effect as though expressly made at and as of the Closing Date and the Company has not performed or complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) any stop order suspending the effectiveness of the Registration Statement has been issued or any proceedings for that purpose have been instituted or threatened by the Commission; and
(iii) since
the date of the most recent financial statements included in the Disclosure
Package and the Prospectus, there has been any material adverse change or any
development involving a prospective material adverse change in the condition
(financial or
12
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 Disclosure Package
and the Prospectus.
(e) At the time this Agreement is executed, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters (which may refer to letters previously delivered to one or more of the Representative), dated as of the date of this Agreement, in form and substance satisfactory to the Representative, confirming that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) They are an independent registered public accounting firm with respect to the Company within the meaning under the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) In their opinion, the consolidated financial statements of the Company and its subsidiaries audited by them and included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements under the Securities Act and the Exchange Act and the related rules and regulations adopted by the Commission.
(iii) On the basis of procedures (but not an audit in accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board of directors, executive committee and audit committee of the Company and the boards of directors of the Principal Subsidiary Bank as set forth in the minute books through a specified date not more than five business days prior to the date of delivery of such letter;
(b) Performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Accounting Standards No. 100, Interim Financial Information, on the unaudited condensed consolidated interim financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus and reading the unaudited interim financial data, if any, for the period from the date of the latest balance sheet included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus to the date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below;
nothing has come to their attention as a
result of the foregoing procedures that caused them to believe that:
13
(1) the unaudited condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations thereunder;
(2) any material modifications should be made to the unaudited condensed consolidated interim financial statements, included or incorporated by reference in the Registration Statement, the preliminary prospectus, and the Prospectus, for them to be in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim financial data and at the specified date not more than five business days prior to the date of the delivery of such letter, there was any change in the common stock and additional paid-in capital or the consolidated long-term debt (other than scheduled repayments of such debt) of the Company and the subsidiaries on a consolidated basis as compared with the amounts shown in the latest balance sheet included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus or (ii) for the period from the date of the latest available financial data to a specified date not more than five business days prior to the delivery of such letter, there was any change in the common stock and additional paid-in capital or the consolidated long-term debt (other than scheduled repayments of such debt) of the Company and the subsidiaries on a consolidated basis, except in all instances for changes or decreases which the Registration Statement, the preliminary prospectus, and the Prospectus discloses have occurred or may occur, or PricewaterhouseCoopers LLP shall state any specific changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers LLP has carried out certain other specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included or incorporated by reference in the Registration Statement, the preliminary prospectus and the Prospectus and which are specified by the Representative and agreed to by PricewaterhouseCoopers LLP, and has found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and its subsidiaries identified in such letter.
In addition, on the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Representative a letter or letters, dated the Closing Date, in form and substance satisfactory to the Representative, to the effect set forth in this paragraph (e).
(f) Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Prospectus, there shall not have been
(i) any change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
other), earnings, business or properties of the Company and its
14
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 Shares
as contemplated by the Registration Statement, the Disclosure Package and the
Prospectus.
(g) 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.
(h) On or after the date hereof and prior to the Closing Date, (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities.
(i) The Representative shall have received on the Closing Date a certificate of the Depository.
(j) The Deposit Agreement shall have been duly authorized, executed and delivered, in a form reasonably satisfactory to the Representative.
(k) There shall not have come to the Representative's attention any facts that would cause the Representative to believe that the Disclosure Package, as of the Initial Sale Time, or the Prospectus, at the time it was required to be delivered to a purchaser of the Depositary Shares, included any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time of such delivery, not misleading.
If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
6. Payment
of Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation,
printing, delivery to the Underwriters and filing of the Registration
Statement, any Issuer Free Writing Prospectus, the preliminary prospectus and
the Prospectus as originally filed and of each amendment or supplement thereto,
(ii) the copying of this Agreement, (iii) the preparation, issuance and
delivery of the certificates for the Depositary Shares to the Underwriters,
including capital duties, stamp duties and transfer taxes, if any, payable upon
issuance of any of the Shares, the sale of the Depositary Shares to the
Underwriters and the fees and expenses of any transfer agent or trustee for the
Shares, (iv) the fees and expenses of counsel to any such transfer agent or
trustee, (v) the fees and disbursements of the Company's counsel and accountants,
(vi) the
15
qualification of the Shares under state securities laws in accordance
with the provisions of Section 4(e), including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Survey, (vii) the
printing and delivery to the Underwriters of copies of any Blue Sky Survey, and
(viii) the fees of FINRA, (ix) any fees charged by rating agencies for the
rating of the Depositary Shares and (x) the fees and expenses of any depository
and any nominee thereof in connection with the Depositary Shares.
If the sale of the Depositary Shares provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Depositary Shares.
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 under the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such controlling person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and to reimburse each Underwriter and each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by Banc of America Securities LLC) as such expenses are reasonably incurred by such Underwriter or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with the Underwriter Information. The indemnity agreement set forth in this Section 7(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning under the Securities Act or the Exchange Act, against any loss,
claim, damage, liability or expense, as incurred, to which the Company, or any
such director, officer or controlling person may become
16
subject, insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or
alleged untrue statement of a material fact contained in the Base Prospectus, the
preliminary prospectus, or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, and only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Base Prospectus, the preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), in reliance upon and in conformity
with the Underwriter Information; and to reimburse the Company, or any such
director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The Company hereby acknowledges that the only information that the
Underwriters have furnished to the Company expressly for use in the
Registration Statement, the Disclosure Package or the Prospectus (or any amendment
or supplement thereto) are the names of the Underwriters, the sentences
relating to concessions and reallowances and the statements set forth in the
seventh and eighth paragraphs, all under the caption "Underwriting"
in the preliminary prospectus and the Prospectus. The indemnity agreement set
forth in this Section 7(b) shall be in addition to any liabilities that each
Underwriter may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement
thereof; but the failure to so notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any liability other than the indemnification obligation provided in paragraph
(a) or (b) above. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof
with counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified parties
that are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of such
indemnifying party's election so to assume the defense of such action and
approval by the
17
indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (other than local counsel approved
by the Representative)), representing the indemnified parties who are parties
to such action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) The indemnifying party under this Section 7 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 against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(e) If
the indemnification provided for in Sections 7(a) through (d) is for any reason
unavailable to or otherwise insufficient to hold harmless an indemnified party
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (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 Shares pursuant to this Agreement 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 Company, on the one
hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, 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 Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Shares
pursuant to this Agreement (before deducting expenses) received by the Company,
and the total underwriting discount received by the Underwriters, in each case
as set forth on the front cover page of the Prospectus, bear to the aggregate
initial public offering price of the Shares as set forth on such cover. 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
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact or any such inaccurate or alleged
inaccurate representation or warranty relates to information supplied by the
Company, on the one hand, or
18
the Underwriters, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 7(c) with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 7; provided, however, that no additional notice shall be required with respect to any action for which notice has been given in accordance with Section 7(c) for purposes of indemnification. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7(e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 7(e).
Notwithstanding the provisions of this Section 7(e), no Underwriter shall be required to contribute any amount in excess of the underwriting discounts received by such Underwriter in connection with the Shares underwritten by it. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) under the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 7(e) are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule II. For purposes of this Section 7(e), each person, if any, who controls an Underwriter within the meaning under the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement and each person, if any, who controls the Company within the meaning under the Securities Act and the Exchange Act shall have the same rights to contribution as the Company. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (e), notify such party or parties from whom contribution may be sought, as contemplated by the preceding paragraph. However, the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (e).
8. Default
by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Shares 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 Shares set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Shares set forth
opposite the names of all the remaining Underwriters) the Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Shares set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any
19
obligation to purchase any, of the Shares, and if such
non-defaulting Underwriters do not purchase all the Shares, this Agreement will
terminate without liability to any non-defaulting Underwriter or the Company.
In the event of a default by any Underwriter as set forth in this Section 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, the Disclosure Package, the preliminary prospectus and the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
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 Shares, if prior to such time (i) trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, or (ii) a banking moratorium shall have been declared by Federal or New York State authorities or a material disruption in the commercial banking or securities settlement or clearance services in the United States shall have occurred, or (iii) there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis (in the United States or elsewhere) the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representative, impracticable to market the Shares.
10. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Shares. 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 telexed and confirmed to them, at the address specified in Schedule I hereto, with a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 1290 Avenue of the Americas, New York, New York 10104-0050, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; or, if sent to the Company, will be mailed, delivered or telexed and confirmed to it at Bank of America Corporation, Corporate Treasury ― Securities Administration, Bank of America Corporate Center, NC1-007-07-13, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to each of: Bank of America Corporation, Legal Department, NC1-002-29-01, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: General Counsel; and ▇▇▇▇▇ Mulliss & Wicker, PLLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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. No
Fiduciary Duties; Agreement Complete.
20
(a) The Company acknowledges and agrees that: (i) the purchase and sale of the Shares pursuant to this Agreement, including the determination of the public offering price of the Shares and any related discounts and commissions, is an arm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company, or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
(b) This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters, or any of them, with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
14. Applicable Law. This Agreement will be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to principles of conflict of laws.
21
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.
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Very truly yours, BANK OF AMERICA CORPORATION By: /s/ B. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. |
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The foregoing Agreement is By: BANC OF AMERICA SECURITIES LLC By: /s/ ▇▇▇▇ ▇▇▇▇▇ For themselves and the other |
SCHEDULE I
Underwriting Agreement dated January 24, 2008.
Registration Statement No. 333-133852.
Representative: Banc of America Securities LLC
Address of Representative: c/o Banc
of America Securities LLC
NY1-301-29-01
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title, Purchase Price and Description of Depositary Shares:
Title: Depositary Shares, Each Representing a 1/25th Interest in a Share of Fixed-to-Floating Rate Non-Cumulative Preferred Stock, Series K
Net purchase price (include type of funds, if applicable): $5,940,000,000 (plus accrued dividends, if any, from January 30, 2008 to the date of delivery) 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.
Other provisions:
Closing Date, Time and Location: January 30, 2008, 9:00 a.m., New York City time, Office of ▇▇▇▇▇ Mulliss & Wicker, PLLC.
Additional items to be covered
by the letter from
PricewaterhouseCoopers LLP delivered pursuant
to Section 5(e) at the time this Agreement is executed: None
I-1
SCHEDULE II
|
Underwriters |
Number of Depositary Shares, Series K to be Purchased |
|
Banc of America Securities LLC................................................ |
5,820,000 |
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.......................................... |
60,000 |
|
UBS Securities LLC.................................................................. |
60,000 |
|
Loop Capital Markets, LLC...................................................... |
30,000 |
|
The ▇▇▇▇▇▇▇▇ Capital Group, L.P................................................ |
30,000 |
|
Total.................................................................................. |
6,000,000 |
II-1
SCHEDULE III
Issuer Free Writing Prospectuses
The Final Term Sheet, as set forth in Schedule IV
Bank of America Corporation Press Release dated January 24, 2008
III-1
SCHEDULE IV
BANK OF AMERICA CORPORATION
6,000,000
Depositary Shares, Each Representing a 1/25th Interest in a Share of
Bank of America Corporation Fixed-to-Floating Rate Non-Cumulative Preferred
Stock, Series K
FINAL TERM SHEET
Dated January 24, 2008
|
Issuer: |
Bank of America Corporation |
|
Security: |
Depositary Shares, each representing a 1/25th interest in a share of Bank of America Corporation Fixed-to-Floating Rate Non-Cumulative Preferred Stock, Series K |
|
Expected Ratings: |
Aa3 (▇▇▇▇▇'▇) / A+ (S&P) / AA- (Fitch) |
|
Size: |
6,000,000 Depositary Shares |
|
Maturity: |
Perpetual |
|
Day Count: |
From January 30, 2008 to, but excluding, January 30, 2018, 30/360 and thereafter Actual/360 |
|
Trade Date: |
January 24, 2008 |
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Settlement Date: |
January 30, 2008 (DTC) |
|
Dividend Rate (Non-Cumulative): |
From January 30, 2008 to, but excluding, January 30, 2018, 8.00% and thereafter Three-Month LIBOR plus 3.63% |
|
Dividend Payment Dates: |
Beginning July 30, 2008, each January 30 and July 30 to, but excluding, January 30, 2018 and thereafter each January 30, April 30, July 30, and October 30 |
|
Optional Redemption: |
On any Dividend Payment Date on or after January 30, 2018 (subject to limitations described in the prospectus supplement dated January 24, 2008) |
|
Public Offering Price: |
$1,000 per depositary share |
|
Lead Manager: |
Banc of America Securities LLC |
|
Senior Co-Managers: |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
|
UBS Securities LLC |
|
|
Junior Co-Managers: |
Loop Capital Markets, LLC |
|
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. |
|
|
CUSIP for the Depositary Shares: |
060505 DR2 |
|
Simultaneous Offerings: |
On January 24, 2008, the Issuer also priced approximately 6,000,000 shares of the Issuer's 7.25% Non-Cumulative Perpetual Convertible Preferred Stock, Series L with an aggregate liquidation amount of approximately $6,000,000,000 |
__________
______________
The Issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may obtain these documents for free by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, Bank of America Corporation or the lead manager will arrange to send you the prospectus if you request it by contacting Bank of America Corporation, Corporate Treasury - Securities Administration, at ▇-▇▇▇-▇▇▇-▇▇▇▇, or Banc of America Securities LLC, toll free at 1-800-294-1322. You may also request a copy by e-mail from ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or ▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.