Exhibit 1.3
BANK ONE CAPITAL [_]
(a Delaware business trust)
[____] Preferred Securities
[__%][Floating Rate] Preferred Securities
(Liquidation Amount of $[____] Per Preferred Security)
UNDERWRITING AGREEMENT
Dated: [Date]
BANK ONE CAPITAL [_]
(a Delaware business trust)
[____] Preferred Securities
[__%][Floating Rate] Preferred Securities
(Liquidation Amount of $[____] Per Preferred Security)
UNDERWRITING AGREEMENT
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[Date]
[Name[s] of Underwriter[s]
As representatives of the several Underwriters
[to be determined]
Ladies and Gentlemen:
BANK ONE CAPITAL [_] (the "Trust"), a statutory business trust organized
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under the Business Trust Act of the State of Delaware (Chapter 38, Title 12, of
the Delaware Code, 12 Del. C. (S)(S) 3801 et seq.) (the "Delaware Act") and BANK
-- --- ------------
ONE CORPORATION, a Delaware corporation (the "Company" and, together with the
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Trust, the "Offerors") confirm their agreement (the "Agreement") with [to be
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determined] and each of the other Underwriters named in Schedule A hereto
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(collectively, the "Underwriters", which term shall also include any underwriter
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substituted as hereinafter provided in Section 10 hereof), for whom [to be
determined] are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Trust and the
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purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of [__%][Floating Rate] Preferred Securities (liquidation
amount of $____ per preferred security) of the Trust (the "Preferred
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Securities") set forth in said Schedule A, and with respect to the grant by the
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Trust to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of the additional
Preferred Securities to cover over-allotments, if any. The aforesaid [______]
Preferred Securities (the "Initial Securities") to be purchased by the
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Underwriters and all or any part of the [______] Preferred Securities subject
to the option described in Section 2(b) hereof (the "Option Securities") are
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hereinafter called, collectively, the "Designated Securities." The Securities
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will be guaranteed by the Company with respect to distributions and payments
upon liquidation, redemption and otherwise (the "Preferred Securities
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Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
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"Preferred Securities Guarantee Agreement"), dated as of [date], between the
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Company and The Chase Manhattan Bank, as Trustee (the "Guarantee Trustee"). The
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Preferred Securities and the related Preferred Securities Guarantees are
referred to herein as the "Securities".
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The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered. The entire proceeds from the
sale of the Securities will be combined with the entire proceeds from the sale
by the Trust to the Company of its common securities (the "Common Securities")
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guaranteed by the Company, to the extent set forth in the Prospectus (as defined
herein), with respect to distributions and payments upon liquidation, and
redemption (the "Common Securities Guarantee" and together with the Preferred
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Securities Guarantee, the "Guarantees") pursuant to the Common Securities
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Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
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with the Preferred Securities Guarantee Agreement, the "Guarantee Agreements"),
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dated as of [date] executed and delivered by the Company for the benefit of the
holders of the Common Securities, and will be used by the Trust to purchase
$[_____] aggregate principal amount of Junior Subordinated Deferrable Interest
Debentures due [date] (the "Subordinated Debt Securities") to be issued by the
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Company and, if all or any part of the Option Securities are purchased, up to
approximately an additional $[_____] aggregate principal amount of Subordinated
Debt Securities (the "Option Subordinated Debt Securities"). The Preferred
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Securities and the Common Securities will be issued pursuant to the amended and
restated declaration of trust of the Trust, dated as of [date] (the
"Declaration"), among the Company, as Sponsor, the trustees named therein (the
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"Trustees") and the holders from time to time of undivided beneficial interests
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in the assets of the Trust. The Subordinated Debt Securities will be issued
pursuant to an indenture, dated as of January 1, 1997, among the Company and The
Chase Manhattan Bank, as trustee (the "Debt Trustee") (the "Base Indenture"),
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and a supplement thereto, dated as of [date] (the "Supplemental Indenture," and
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together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), among the Company and the Debt Trustee.
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The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a shelf registration statement on Form S-3 (File No. 333-[_____])
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covering the registration of, among other securities, (i) the Preferred
Securities, (ii) the Preferred Securities Guarantee and (iii) the Subordinated
Debt Securities under the Securities Act of 1933, as amended (the "1933 Act"),
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which permits the delayed or continuous offering of securities pursuant to Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
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Act Regulations"). Promptly after execution and delivery of this Agreement, the
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Offerors will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 424(b) ("Rule 424(b)") of the 1933 Act Regulations or (ii) if
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the Offerors have elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
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Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with
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the provisions of Rule 434 and Rule 424(b). The information included in such
Term Sheet that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective is referred to as "Rule 434 Information." Each
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prospectus used before such Rule 424(b) prospectus has been filed and any
prospectus that omitted the Rule 434 Information, in each case that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
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statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 434
Information is herein called the "Registration Statement." Any registration
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statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement" and after such filing
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the term "Registration Statement" shall include the Rule 462 (b) Registration
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Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the "Prospectus." If Rule 434 is relied on,
the term "Prospectus" shall refer to the preliminary prospectus together with
the Term Sheet and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
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All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
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incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties. The Offerors jointly and
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severally represent and warrant to each Underwriter as of the date hereof and as
of the applicable delivery date, if any (each such date being hereinafter
referred to as a "Delivery Date"), as follows:
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a. Compliance with Registration Requirements. The Company meets
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the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement became effective
and at the Delivery Date, the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, the 1934 Act,
the regulations of the Commission under the 1934 Act (the "1934 Act
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Regulations"), and the Trust Indenture Act of 1939 (the "1939 Act") and the
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rules and regulations of the Commission under the 1939 Act (the "1939 Act
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Regulations"), and did not and will not contain
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an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus as amended or supplemented, if applicable,
at the Delivery Date and at the Closing Time referred to in Section 2
hereof, will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, 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 Offerors in writing by any Underwriter through
[to be determined] expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of the Securities was, at the time of
such delivery, identical to any electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
b. Incorporated Documents. The documents incorporated or deemed to
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be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time when they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations, as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at each Delivery Date, did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
c. No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse Effect"),
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whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) except for regular quarterly dividends on the
common stock, par value $0.01 per share, of the Company (the "Common
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Stock") and the regular quarterly dividends on the Company's Preferred
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Stock with Cumulative and Adjustable Dividends, Series B ($100 stated
value), $0.01 par value; and Preferred Stock with Cumulative and Adjustable
Dividends, Series C ($100 stated value), $0.01 par value; in amounts per
share that are consistent with past practice or publicly announced
increases prior
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to the date of the Registration Statement, there has been no dividend or
distribution of any kind declared, paid or made on any class of its Capital
Stock.
d. Good Standing of the Company and its Subsidiaries. The Company
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has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the state of Delaware, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each Significant Subsidiary (as
defined in Regulation S-X promulgated by the Commission) of the Company has
been duly incorporated chartered or organized and is validly existing as a
corporation or national banking association, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
organization.
e. Capitalization. The authorized, issued and outstanding capital
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stock of the Company is as set forth in the Prospectus Supplement in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus or as otherwise described in the Prospectus).
f. Authorization and Description of Designated Securities. The
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Designated Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; the Designated Securities conform to the statements
relating thereto contained in the Prospectus and such description conforms
to the rights set forth in the instruments defining the same; the holders
of the Designated Securities (the "Security holders") will be entitled to
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the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware; and the issuance of the Designated Securities is
not subject to the preemptive or other similar rights of any security
holder of the Company.
g. Authorization and Description of Common Securities. The Common
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Securities have been duly and validly authorized by the Trust and upon
delivery by the Trust to the Company against payment therefor as described
in the Prospectus, will be duly and validly issued and fully paid and non-
assessable undivided beneficial interests in the assets of the Trust and
will conform to the description thereof contained in the Prospectus; the
issuance of the Common Securities is not subject to preemptive or other
similar rights; and at each Delivery Date, all of the issued and
outstanding Common Securities of the Trust will
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be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
h. Good Standing of the Trust. The Trust has been duly created and
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is validly existing as a statutory business trust in good standing under
the Delaware Act with the power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus, and the
Trust has conducted no business to date, and it will conduct no business in
the future that would be inconsistent with the description of the Trust set
forth in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Declaration and the
agreements and instruments contemplated by the Declaration; the Trust has
no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Declaration and
described in the Prospectus; and the Trust is not a party to or subject to
any action, suit or proceeding of any nature.
i. Absence of Defaults and Conflicts. The issue and sale of the
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Preferred Securities and the Common Securities by the Trust, the compliance
by the Trust with all of the provisions of this Agreement, the purchase of
the Subordinated Debt Securities by the Trust, and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, loan agreement, mortgage, deed of trust or other agreement
or instrument to which the Trust is a party or by which the Trust is bound
or to which any of the property or assets of the Trust is subject, nor will
such action result in any violation of the provisions of the Declaration or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust or any of its properties;
and no consent, approval, authorization, order, license, certificate,
permit, registration or qualification of or with any such court or other
governmental agency or body is required to be obtained by the Trust for the
issue and sale of the Preferred Securities and the Common Securities by the
Trust, the purchase of the Subordinated Debt Securities by the Trust or the
consummation by the Trust of the transactions contemplated by this
Agreement and the Declaration, except for such consents, approvals,
authorizations, licenses, certificates, permits, registrations or
qualifications as have already been obtained, or as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws or under
1939 Act.
The issuance by the Company of the Guarantees and the Subordinated
Debt Securities, the compliance by the Company with all of the provisions
of this Agreement, the execution, delivery and performance by the Company
of the Declaration, the Subordinated Debt Securities, the Guarantee
Agreements and the Indenture, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, loan agreement, mortgage, deed of
trust, or other material agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of
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the provisions of the Restated Certificate of Incorporation or by-laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authorization, order, license,
certificate, permit, registration or qualification of or with any such
court or other governmental agency or body is required for the issue of the
Guarantees and the Subordinated Debt Securities or the consummation by the
Company of the other transactions contemplated by this Agreement, except
for such consents, approvals, authorizations, licenses, certificates,
permits, registrations or qualifications as have already been obtained, or
as may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws or under the 1939 Act.
j. Authorization of Agreements. This Agreement, the Guarantee
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Agreements, the Subordinated Debt Securities, the Declaration and the
Indenture have each been duly authorized and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the
Guarantee Trustee, in the case of the Declaration, by the Trustees and, in
the case of the Indenture, by the Debt Trustee, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether enforcement is
sought in a proceeding at law or in equity); the Subordinated Debt
Securities are entitled to the benefits of the Indenture; and the Guarantee
Agreements, the Subordinated Debt Securities, the Declaration and the
Indenture conform to the descriptions thereof in the Prospectus.
k. Accuracy of Exhibits. There are no contracts or documents which
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are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
l. Investment Company Act. The Trust is not, and after giving
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effect to the offering and sale of the Preferred Securities will not be, an
"investment company," or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
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m. Legal or Governmental Proceedings. There are no legal or
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governmental proceedings pending or threatened to which the Trust or the
Company or any of its subsidiaries is a party or to which any of the
properties of the Trust or the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described.
n. Qualification of Agreements. Each of the Declaration, the
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Indenture and the Preferred Securities Guarantee has been qualified under
the 1939 Act and has been duly authorized by the Company and the Trust, as
applicable.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
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a. Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the price per security set forth in Schedule B, the number of Initial
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Securities set forth in Schedule A opposite the name of such Underwriter, plus
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any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
b. Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions set
forth, the Trust hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional [______] Preferred Securities at the
price per Preferred Security set forth in Schedule B, less an amount per
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Preferred Security equal to any distributions declared by the Trust and payable
on the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution of
the Initial Securities upon notice by the Representatives to the Trust setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and a Delivery Date shall be determined
by the Representatives, but shall not be later than seven full business days
after the exercise of said option, nor in any event prior to the Closing Time,
as hereinafter defined. If the option is exercised as to all or any portion of
the Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter bears to the total number of
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Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional Preferred Securities.
c. Commission. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Securities will be used to purchase the Subordinated Debt Securities of the
Company, the Company hereby agrees to pay to the Representatives, for the
accounts of the several Underwriters, a commission per security set forth in
Schedule B as compensation to the Underwriters for their commitments under this
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Agreement.
d. Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Representatives and
the Offerors, at 10:00 A.M. (Eastern time) on the [fifth][third (fourth, if the
pricing occurs after 4:30 p.m. (Eastern time)] business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days
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after such date as shall be agreed upon by the Representatives and the Offerors
(such time and date of payment and delivery being herein called "Closing Time").
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In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives,
the Company and the Trust, on each Delivery Date as specified in the notice from
the Representatives to the Trust.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. [To be determined], individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the Delivery Date, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
At the Closing Time and on each Delivery Date, the Company will pay, or
cause to be paid, the commission payable at such time to the Underwriters under
Section 2(b) hereof by wire transfer of immediately available funds to a bank
account designated by [to be determined].
e. Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Delivery Date, as the case
may be. The certificates for the Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Delivery Date, as the case may be.
SECTION 3. Covenants of the Offerors. Each of the Offerors jointly and
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severally covenants with each Underwriter as follows:
a. Compliance with Securities Regulations and Commission Requests.
The Offerors, subject to Section 3(b), will comply with the requirements of
Rule 434 and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (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 Commission of any stop order
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suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Offerors will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as they deem
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The
Offerors will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
b. Filing of Amendments. The Offerors will give the Representatives
notice of their intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
c. Delivery of Registration Statements. The Offerors have furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
d. Continued Compliance with Securities Laws. The Offerors will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriters or the Offerors, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary,
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in the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will
promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Offerors will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters
may reasonably request.
e. Blue Sky Qualifications. The Offerors will use their best
efforts, in cooperation with the Underwriters, to qualify the Preferred
Securities and the Subordinated Debt Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as
the Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that each of the Offerors shall
not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Offerors will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
f. Rule 158. The Trust and the Company will make generally
available to their Security holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
g. Restriction on Sale of Securities. During a period of [_____]
days from the date of the Prospectus, neither the Trust nor the Company
will, without the prior written consent of [to be determined], directly or
indirectly, offer, sell, offer to sell, or otherwise dispose of any
Preferred Securities, any other beneficial interests in the assets of the
Trust, or any preferred securities or other securities of the Trust or the
Company which are substantially similar to the Preferred Securities,
including any guarantee of such securities. The foregoing sentence shall
not apply to any of the Securities to be sold hereunder.
h. Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
SECTION 3A. Covenants of the Underwriters. Each of the Underwriters
-----------------------------
represents and agrees as follows:
11
a. Compliance with NASD Conduct Rules. The Underwriters will
comply with the provisions of Rule 2810 of the Conduct Rules of the
National Association of Securities Dealers, Inc. (the "NASD"), including,
----
without limitation, sections (b)(2)(B) and (b)(3)(D) thereof.
b. Sales in United Kingdom. Each Underwriter (a) has not offered
or sold and prior to the date six months after the date of issue of the
Preferred Securities will not offer or sell any Preferred Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their businesses or otherwise
in circumstances which do not constitute an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, (b) has complied, and will comply with, all applicable
provisions of the Financial Services Act of 1986 of Great Britain with
respect to anything done by it in relation to the Preferred Securities in,
from or otherwise involving the United Kingdom, and (c) has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issuance of the Preferred Securities
to a person who is of a kind described in Article 11(3) of the Financial
Services Act of 1986 (Investment Advertisements) (Exemptions) Order 1996 of
Great Britain (as amended) or is a person to whom the document may
otherwise lawfully be issued or passed on.
SECTION 4. Payment of Expenses. a. Expenses. The Company will pay
-------------------
all expenses incident to the performance of each Offeror's obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Preferred
Securities to the Underwriters, (iv) the fees and disbursements of the Company's
and the Trust's counsel, accountants and other advisors, (v) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(e) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by the NASD
of the terms of the sale of the Securities, (ix) the fees and expenses of the
Debt Trustee, including the fees and disbursements of counsel for the Debt
Trustee, in connection with the Indenture and the Subordinated Debt Securities,
(x) the fees and expenses of the Institutional Trustee and the Delaware Trustee
(each as defined in the Declaration), including the fees and disbursements of
counsel for the Institutional Trustee and the Delaware Trustee, in connection
with the Declaration and the Certificate of Trust, (xi) any fees charged by
securities
12
rating services for rating the Preferred Securities and the Subordinated Debt
Securities, (xii) the fees and expenses of any transfer agent or registrar for
the Securities, (xiii) the cost of qualifying the Preferred Securities with The
Depository Trust Company; (xiv) the fees and expenses of the Preferred Guarantee
Trustee, including the fees and disbursements of counsel for the Preferred
Guarantee Trustee; and (xv) the fees and expenses incurred in connection with
the listing of the Preferred Securities and, if applicable, the Subordinated
Debt Securities on the New York Stock Exchange.
b. Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any officer of the Offerors or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Offerors
of their covenants and other obligations hereunder, and to the following further
conditions:
a. Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time or the relevant Delivery Date, as the case
may be, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of
the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. The Prospectus
shall have been filed with the Commission in accordance with Rule 424(b)
or, if the Offerors have elected to rely upon Rule 434, a Term Sheet shall
have been filed with the Commission in accordance with Rule 424(b).
b. Opinion of Counsel. At the Closing Time or the relevant
Delivery Date, as the case may be, the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq., General Counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, substantially
in the form set forth in Exhibit A.
---------
(ii) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("SASM&F"), special Delaware counsel for the Offerors,
------
in form and substance satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit B.
---------
13
(iii) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of [to be determined],
counsel for the Institutional Trustee, in form and substance
satisfactory to counsel for the Underwriters, substantially in the
form set forth in Exhibit C.
---------
(iv) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of SASM&F, counsel for the
Underwriters, in form and substance satisfactory to the Underwriters.
(v) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of SASM&F, special tax
counsel for the Offerors, in form and substance satisfactory to the
Underwriters.
c. Officers' Certificate. At the Closing Time or the relevant
Delivery Date, as the case may be, since the date hereof or since the
respective dates as of which information is given in the Prospectus, there
shall not have been any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
either the Company and its subsidiaries considered as one enterprise, or
the Trust, as the case may be, whether or not arising in the ordinary
course of business and the Representatives shall have received a
certificate, dated as of the Closing Time or the relevant Delivery Date, as
the case may be, from each of (a) the President or a Vice President of the
Company and of the chief financial officer or chief accounting officer of
the Company and (b) a Regular Trustee (as defined in the Declaration) of
the Trust, to the effect that (i) there has been no such material adverse
change in the conditions of the Company or the Trust, as the case may be,
(ii) the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as
of Closing Time or the relevant Delivery Date, as the case may be, (iii)
the Company or the Trust, as the case may be, has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time or the relevant Delivery Date, as the
case may be, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are contemplated by the Commission.
d. Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP a letter dated such date, in form and substance satisfactory
to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
e. Bring-down Comfort Letter. At the Closing Time or the relevant
Delivery Date, as the case may be, the Representatives shall have received
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
14
a letter, dated as of Closing Time or the relevant Delivery Date, as the
case may be, to the effect that they reaffirm the statements made in their
letter furnished pursuant to subsection (d) of this Section, except that
the specified date referred to shall be a date not more than three business
days prior to Closing Time or the relevant Delivery Date, as the case may
be.
f. Maintenance of Rating. At the Closing Time or the relevant
Delivery Date, as the case may be, the Preferred Securities and the
Subordinated Debt Securities shall be rated in one of the four highest
rating categories for long term debt ("Investment Grade") by Moody's
----------------
Investor's Service and by Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., and the Company shall have delivered to the
Representatives a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming
that the Preferred Securities and the Subordinated Debt Securities have
such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Preferred Securities
or the Subordinated Debt Securities or any of the Company's other
securities by any "nationally recognized statistical rating agency," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that
it has under surveillance or review its rating of the Preferred Securities
and the Subordinated Debt Securities or any of the Company's other
securities.
g. Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Preferred Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Offerors in connection with the issuance and sale of the
Preferred Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
h. Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Delivery Date which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Offerors at any time at or prior to Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
(i) Approval of Listing. At the Closing Time, the Preferred
Securities shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
15
SECTION 6. Indemnification.
---------------
a. Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 434 Information,
if applicable, 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 arising out of any untrue statement or alleged
untrue statement of a material fact included in any 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;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by [to be determined]), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through [to be determined] expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that this indemnity agreement with
-------- -------
respect to any preliminary prospectus shall not inure to the benefit of any
underwriter from whom the person asserting any such losses, liabilities, claims,
damages or expenses purchased Securities, or any person controlling such
Underwriter, if the Offerors sustain the burden that a copy of the Prospectus
(as then amended or supplemented if the Offerors shall have furnished any such
amendments or supplements thereto), but excluding docu-
16
ments incorporated or deemed to be incorporated by reference, was not sent or
given by or on behalf of such Underwriter to such person, if such is required by
law, at or prior to the written confirmation of the sale of such Securities to
such person and if the Prospectus (as so amended or supplemented, but excluding
documents incorporated or deemed to be incorporated by reference therein) would
have corrected the defect giving rise to such loss, liability, claim, damage or
expense, it being understood that this proviso shall have no application if
such defect shall have been corrected in a document which is incorporated or
deemed to be incorporated by reference in the Prospectus.
b. Indemnification of Offerors, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Offerors, their directors,
trustees, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Offerors within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Offerors by such Underwriter through [to be
determined] expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
c. Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by [to be determined], and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim
17
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.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) 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 of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages 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 Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Preferred
Securities 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 cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Securities 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 relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company 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 (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities
18
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 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 of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
----------
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement or in certificates of officers or Trustees of the Offerors submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Offerors, and shall survive delivery of the
Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
a. Termination; General. The Representatives may terminate this
Agreement, by notice to the Offerors, at any time at or prior to Closing Time
(i) if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Designated Securities or to enforce
contracts for the sale of the Designated Securities, or (iii) if trading in any
securities of the Company has been suspended by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market System has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the NASD or any other governmental
19
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York or Illinois State authorities.
b. Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time or a Delivery Date to purchase the
Designated Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
--------------------
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
a. if the number of Defaulted Securities does not exceed 10% of
the number of Designated Securities, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
b. if the number of Defaulted Securities exceeds 10% of the number
of Designated Securities, this Agreement or, with respect to any Delivery
Date which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Offerors to the sell the Option
Securities shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, or, in the case of a Delivery Date which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Offerors shall have the
right to postpone Closing Time or the relevant Delivery Date, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of
20
telecommunication. Notices to the Underwriters shall be directed to the
Representatives at [to be determined], Attention: [to be determined]; notices to
the Trust and the Company shall be directed to them at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Underwriters and the Trust and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Trust and the Company and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Trust and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Trust a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Trust and the Company in accordance with its terms.
Very truly yours,
BANK ONE CAPITAL [_]
By__________________
Name:
Title:
BANK ONE CORPORATION
By__________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[Name[s] of Underwriter[s]]
By: [to be determined]
By_________________________
[Authorized Signatory]
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
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SCHEDULE A
Number
Name of Underwriter of Securities
------------------- -------------
--------
Total ...........................................
========
Sch A-1
SCHEDULE B
BANK ONE CAPITAL [_]
[_____] Preferred Securities
[__%] [Floating Rate] Preferred Securities
(Liquidation Amount of $[_____] Per Preferred Security)
1. The initial public offering price per security for the Preferred
Securities, determined as provided in Section 2, shall be $ [_____].
2. The purchase price per security for the Preferred Securities to be
paid by the several Underwriters shall be $[_____], being an amount equal to the
initial public offering price set forth above; provided that the purchase price
per Preferred Security for any Option Securities purchased upon exercise of the
over-allotment option described in Section 2(b) shall be increased by an amount
per Preferred Security equal to any accrued distributions through the Delivery
Date on which such Option Securities are purchased.
3. The commission per Preferred Security to be paid by the Company to the
Underwriters for their commitments hereunder shall be $[_____] per Preferred
Security.
Sch B-1
Exhibit A
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ESQ.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
A-1
Exhibit B
FORM OF OPINION OF SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
B-1
Exhibit C
FORM OF OPINION OF [TO BE DETERMINED]
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(iii)
C-1