Exhibit 1.1
FIRSTAR CORPORATION
$200,000,000
6.35% Notes Due 2001
UNDERWRITING AGREEMENT
July 7, 1999
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
as the Several Underwriters
c/o Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Firstar Corporation, a Wisconsin corporation (the "Company"),
confirms its agreement (the "Agreement") with Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 9 hereof), with respect to the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $200,000,000
aggregate principal amount of 6.35% Notes Due 2001 (the "Notes").
The Company understands that the Underwriters propose to make a
public offering of the Notes as soon as the Underwriters deem advisable after
this Agreement has been executed and delivered. The Notes will be issued
pursuant to an indenture, dated as of June 22, 1999 (the "Indenture"), between
the Company and Citibank, N.A., as trustee (the "Trustee").
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The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-79981) and
Amendment No. 1 thereto for the registration of debt securities (including the
Notes) and certain other securities of the Company under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement, as
amended, has been declared effective by the Commission, and the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement, as amended, including the information, if
any, deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933 Act
Regulations (the "Rule 434 Information"), are collectively referred to herein as
the "Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Notes, in the form first furnished to
the Underwriters by the Company for use in connection with the offering of the
Notes, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities and Exchange Act of 1934, as amended
(the "1934 Act"), prior to the execution of this Agreement. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
Registration Statement became effective and any prospectus or prospectus
supplement that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of this Agreement. For purposes of this Agreement, all references
to the Registration Statement, Prospectus or preliminary prospectus or to any
amendment or supplement to any of the foregoing shall be deemed to include any
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information that is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act that is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
Section 1. Representations and Warranties. The Company represents and
warrants to each Underwriter as of the date hereof and as of the Closing Time
(as hereinafter defined) as follows:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act. At the time the Registration Statement became effective
and as of the date hereof,
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the Registration Statement complied in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations"), and did 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. The Prospectus, as of its issue date and at Closing Time,
does not and 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 Company makes no
representations or warranties as to (A) that part of the Registration
Statement which constitutes the Statement of Eligibility (Form T-1)
under the 1939 Act of the Trustee or (B) the information contained in
the statements set forth in the last paragraph of text above the names
of the Underwriters on the cover page of the Prospectus Supplement
concerning the terms of the offering, the Regulation M language
concerning over-allotments and stabilizing transactions that appears
on page S-8 of the Prospectus Supplement; the first sentence under the
caption "Underwriting" on page S-8 of the Prospectus Supplement; the
names of the Underwriters and the principal amount of the Notes being
purchased by each of them appearing in the table under the caption
"Underwriting" on page S-8 of the Prospectus Supplement and the
penultimate paragraph of text under the caption "Underwriting" on page
S-8 of the Prospectus Supplement containing information furnished on
behalf of the Underwriters concerning transactions and relationships
between the Underwriters or any affiliate thereof and the Company or
any affiliate thereof (such information, the "Underwriters'
Information").
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or Prospectus, at the time
they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934 Act
(the "1934 Act Regulations").
(iii) To the best knowledge of the Company,
PricewaterhouseCoopers, LLP and KPMG LLP, the accountants who
certified the financial statements and supporting schedules included
in or incorporated by reference into the Registration Statement, are
independent public accountants with respect to the Company and
Mercantile Bancorporation, Inc., respectively, as required by the 1933
Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Company is not, and upon the issuance of the Notes as
herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus will not be, an "investment company" or
a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act").
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(vi) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance of the Notes, except such as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws and the
qualification of the Indenture under the 1939 Act.
(vii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, there has been no material adverse change or any
development which could result in a prospective material adverse
change in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of
business.
(viii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Wisconsin with corporate power to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
to enter into and perform its obligations under this Agreement, the
Indenture and the Notes; the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as
amended; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the character or location of its properties or the nature or the
conduct of its business requires such qualification, except for any
failures to be so qualified or in good standing which, taken as a
whole, are not material to the Company and its subsidiaries,
considered as one enterprise.
(ix) Firstar Bank, N.A. and Firstar Bank Milwaukee, N.A. (the
"Bank Subsidiaries") are national banking associations duly organized
and validly existing under the laws of the United States, continue to
hold valid certificates to do business as such and have full power and
authority to conduct their businesses as such and to own, lease and
operate their properties and are duly authorized to transact business
and in good standing in each jurisdiction in which they owns or lease
property of a nature, or transact business of a type, that would make
such qualification necessary, except to the extent that the failure to
so qualify or to be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(x) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms; the Indenture conforms to all statements relating thereto
contained in the Prospectus; and the Indenture has been duly qualified
under the 1939 Act.
(xi) The Notes have been duly authorized by the Company and have
been duly executed by the Company and, when authenticated in the
manner provided for in the Indenture and delivered against payment
therefor as described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against the
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Company in accordance with their terms, will be in the form
contemplated by, and entitled to the benefits of, the Indenture and
will conform to all statements relating thereto in the Prospectus.
(xii) The execution, delivery and performance of this Agreement,
the Indenture and the Notes and the consummation of the transactions
contemplated herein and therein and compliance by the Company with its
obligations hereunder and thereunder will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Bank Subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of the Bank Subsidiaries is a
party or by which it or either of them may be bound, or to which any
of the property or assets of the Company or any of the Bank
Subsidiaries is subject (except for conflicts, breaches and defaults
which would not, individually or in the aggregate, be materially
adverse to the Company and its subsidiaries taken as a whole or
materially adverse to the transactions contemplated by this
Agreement), nor will such action result in any material violation of
the provisions of the articles of incorporation or by-laws of the
Company, or any applicable law, administrative regulation or
administrative or court decree.
Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(xiii) There is not pending or threatened any action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed
in the Registration Statement and the Prospectus (other than as stated
therein).
Section 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, the principal amount of the Notes set forth
in Schedule A hereto opposite the name of such Underwriter at a
purchase price of 99.609% of the principal amount of the Notes, plus
any additional number of Notes that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof,
plus accrued interest, if any, from July 13, 1999, if payment and
delivery occurs after July 13, 1999.
(b) Payment of the purchase price, and delivery of certificates,
for the Notes shall be made at the office of Simpson Thacher &
Bartlett, or at such other place as shall be agreed upon by the
Underwriters and the Company, at 9:30 A.M. New York time on the fourth
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business day after the date hereof (i.e., July 13, 1999), or such
other time not later than ten business days after such date as shall
be agreed upon by the Underwriters and the Company (such time and date
of payment and delivery being herein called "Closing Time" and
"Closing Date", respectively). Payment shall be made to the Company by
wire transfer or certified or official bank check of same day funds
payable to the order of the Company, against delivery to the
Underwriters of certificates for the Notes to be purchased by it
(unless such Notes are issuable only in the form of one or more global
securities registered in the name of a depository or a nominee of a
depository, in which event the Underwriters' interest in such global
certificate shall be noted in a manner satisfactory to the
Underwriters and their counsel). Unless otherwise agreed, certificates
for the Notes shall be deposited with a custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC.
Section 3. COVENANTS OF THE COMPANY. The Company covenants with
each Underwriter as follows:
(a) The Company will notify the Underwriters promptly, and confirm the
notice in writing, (i) of any amendment to the Registration Statement (including
any post-effective amendment), (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 suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company 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) The Company will give the Underwriters notice of its intention to
file or prepare (i) any amendment to the Registration Statement (including any
post-effective amendment), (ii) any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Notes), or (iii) any
document that would as a result thereof be incorporated by reference in the
Prospectus whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriters with copies of any such amendment, supplement or other
document reasonably related to the Registration Statement within a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such amendment, supplement or other document or use any such
prospectus to which the Underwriters or counsel for the Underwriters shall
reasonably object. Subject to the foregoing, the Company will file the
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement.
(c) The Company will deliver to the Underwriters as many 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) as the
Underwriters may reasonably request and will also
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deliver to the Underwriters a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits).
(d) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of the Prospectus (as amended or supplemented) as the
Underwriters may reasonably request for the purposes contemplated by the 1933
Act or the 1933 Act Regulations.
(e) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Notes, any event shall occur as a
result of which the Prospectus as then amended or supplemented will include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading or if it shall be necessary to amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will, subject to paragraph (b) above, promptly
prepare and file with the Commission such amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and the Company will furnish to the Underwriters a reasonable number
of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Notes for offering and sale under the applicable securities laws
of such states and the other jurisdictions of the United States as the
Underwriters may designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified.
(g) The Company will make generally available to its security holders
and to the Underwriters as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (which need not
be audited)of the Company and its subsidiaries, covering an applicable period
beginning not later than the first day of the Company's fiscal quarter next
following the "Effective Date" (as defined in Rule 158(c) under the Act) of the
Registration Statement, which will satisfy the provisions of Section 11(a) of
the 1933 Act.
(h) Until the business day following the Closing Time, the Company
will not, without the consent of the Underwriters, offer, sell or contract to
sell, or announce the offering of, any debt securities covered by the
Registration Statement or any other registration statement filed under the 1933
Act.
Section 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(i) the printing and filing of the Registration Statement with the Commission,
as originally filed and of each amendment thereto, (ii) the preparation,
issuance and delivery of the certificates for the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants, (iv) the qualification
of the Notes under securities laws in accordance with the provisions of Section
3(f) hereof, including filing
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fees and the fees and disbursements of Simpson Thacher & Bartlett, counsel for
the Underwriters, in connection therewith and in connection with the preparation
of any blue sky survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any blue sky survey, (vii) the fee of the National
Association of Securities Dealers, Inc., if applicable, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture; (ix) any fees payable in connection
with the rating of the Notes; (x) the cost and charges of any transfer agent
or registrar; (xi) the cost of qualifying the Notes with DTC; and (xii) the
reasonable costs of any "road show" related to the Notes, including the
Company's and the Underwriters' travel and related expenses. Notwithstanding the
foregoing, if the sale of the Notes hereunder is consummated, the Underwriters
agree to reimburse the Company, including reimbursement for expenses incurred in
connection with the offering of the Notes, in the amount of $500,000.
If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section 5 or Section 8 hereof, the Company shall
reimburse the Underwriters for all of its reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of Simpson Thacher & Bartlett,
counsel for the Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained or in certificates of officers
of the Company, to the performance by the Company of their obligations
hereunder, and to the following further conditions:
(a) At Closing Time 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. The Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the 1933 Regulations and in accordance
with Section 3(b) and prior to Closing Time the Company shall have provided
evidence satisfactory to the Underwriters of such timely filing.
(b) At Closing Time, the Company shall have furnished to the
Underwriters the opinion of Wachtell, Lipton, Rosen & Katz, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i), (iv) and (v)
through (xi) below, and the opinion of Jennie P. Carlson, General Counsel to the
Company, dated the Closing Time, to the effect of paragraphs (ii) and (iii)
below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of Wisconsin,
has the corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and is duly
registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended; the Bank
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Subsidiaries are national banking associations formed under the
laws of the United States and authorized thereunder to transact
business;
(ii) except for those jurisdictions specifically enumerated in
such opinion, neither the Company nor any of the Bank Subsidiaries is
required to be qualified or licensed to do business as a foreign
corporation in any jurisdiction;
(iii) all the outstanding shares of capital stock of the Bank
Subsidiaries have been duly and validly authorized and issued and are
fully paid and (except as provided in 12 U.S.C. 55, as amended)
nonassessable, and, except as otherwise set forth in the Prospectus,
all outstanding shares of capital stock of the Bank Subsidiaries
(except directors' qualifying shares) are owned, directly or
indirectly, by the Company free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iv) the Notes conform in all material respects to the
description thereof contained in the Prospectus;
(v) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the 1939 Act, and constitutes
a legal, valid and binding instrument enforceable against the Company
in accordance with its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles that
may limit the right to specific enforcement of remedies, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank regulatory powers
and to the application of principles of public policy); and the Notes
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement of
remedies, and further subject to 12 U.S.C. 1818(b)(6)(D) and similar
bank regulatory powers and to the application of principles of public
policy);
(vi) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise,
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contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(vii) the Registration Statement has become effective under the
1933 Act; to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the 1933 Act and the 1934 Act and
the respective rules thereunder; and such counsel has no reason to
believe that the Registration Statement or any amendment thereof at
the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as amended or supplemented,
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors now
or hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions contained
in this Agreement may be limited by federal and state securities laws,
and further subject to 12 U.S.C. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of public
policy);
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
under the 1933 Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution
of the Notes by the Underwriters and such other approvals (specified
in such opinion) as have been obtained;
(x) neither the issue and sale of the Notes, nor the consummation
of any other of the transactions herein contemplated will conflict
with, result in a breach of, or constitute a default under the
articles of incorporation or by-laws of
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the Company or, to the best knowledge of such counsel, the terms
of any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is a party
or bound, or any order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
affiliates; and
(xi) to the best knowledge and information of such counsel, each
holder of securities of the Company having rights to the registration
of such securities under the Registration Statement has waived such
rights or such rights have expired by reason of lapse of time
following notification of the Company's intention to file the
Registration Statement.
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
New York or the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Underwriters, and, in any
case, as to matters involving the application of laws of the State of Wisconsin,
such counsel may rely, to the extent deemed proper and specified in such
opinion, upon the opinion of Nolan Zadra, Esq., Assistant General Counsel of the
Company, which opinion shall be furnished to the Underwriters and shall
expressly authorize such reliance; 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 Underwriters shall have received the favorable opinion, dated
as of Closing Date, of Simpson Thacher & Bartlett, counsel for the Underwriters,
in form and substance satisfactory to the Underwriters with respect to the legal
existence of the Company, the Indenture, this Agreement, the Registration
Statement, the Prospectus and other related matters as the Underwriters may
require, and, as to matters involving the application of laws of the State of
Wisconsin, Simpson Thacher & Bartlett may rely, to the extent deemed proper and
specified in such opinion, upon the opinion of Nolan Zadra, Esq., Assistant
General Counsel of the Company, which opinion shall be furnished to the
Underwriters and shall expressly authorize such reliance.
(d) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development which could result in a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the Company, signed by the Vice Chairman and Chief
Financial Officer and a Senior Vice President of the Company, dated the Closing
Date, to the effect that the signers of such certificate have
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carefully examined the Registration Statement, the Prospectus and this Agreement
and that to the best of their knowledge:
(i) there has been no such material adverse change;
(ii) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date; and
(iii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings
for that purpose have been instituted or threatened.
(e) The Underwriters shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Underwriters,
from PricewaterhouseCoopers LLP, the Company's independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(f) The Underwriters shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Underwriters,
from KPMG, LLP, independent public accountants to Mercantile Bancorporation,
Inc., containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to certain financial
statements and financial information contained in or incorporated by reference
into the Prospectus.
(g) At 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 Notes as herein
contemplated and related proceedings, 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 Company, in
connection with the issuance and sale of the Notes as herein contemplated shall
be satisfactory in form and substance to the Underwriters and Simpson Thacher &
Bartlett, counsel for the Underwriters.
(h) At Closing Time, the Notes shall be rated at least A- by Standard
& Poor's Rating Services and A2 by Moody's Investor Service and there shall not
have occurred any decrease in the ratings of any of the securities of the
Company or the Notes by any nationally recognized statistical rating
organization, and no such organization shall have publicly announced that it has
under surveillance or review its rating of any of the Company's securities or
any of the Notes.
13
(i) At Closing Time there shall not have been a change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would in the view of the Underwriters be likely to
prejudice materially the success of the offering and distribution of the Notes
or dealings in the Notes in the secondary market.
If any condition specified in this Section shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company, in
writing or by telephone or telegraph confirmed in writing, 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 hereof, and except that
Sections 1, 6 and 7 shall survive any such termination and will remain in full
force and effect.
Section 6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each of its partners, officers, directors, and employees and each person, if
any, who controls any Underwriter within the meaning of the 1933 Act or the 1934
Act against any losses, claims, damages or liabilities, and any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Notes), which arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in (A) the Registration Statement, or any amendment
or supplement thereto, (B) the Prospectus and any amendment or supplement
thereto, or (C) any application or other document, or any amendment or
supplement thereto, executed by the Company or based upon information furnished
by or on behalf of the Company filed in any jurisdiction in order to qualify the
Notes under the securities or blue sky laws thereof (each, an "Application") or
(ii) the omission or alleged omission to state in the Registration Statement, or
any amendment or supplement thereto, the Prospectus or any amendment or
supplement thereto, or any Application, a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse as incurred each Underwriter and each such controlling person for any
legal and other expenses incurred in investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action; provided, however, that the Company
shall not be liable to any Underwriter in any such case to the extent that any
such loss, claim, damage or liability arises out of, or is based upon, any
untrue statement or alleged untrue statement made in the Prospectus, including
any amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such
Underwriter specifically for inclusion and actually included therein; and
provided further that, as to any Prospectus that has been amended or
supplemented as provided herein, this indemnity agreement shall not inure to the
benefit of any Underwriter on account of any loss, claim, damage, liability or
action arising out of the sale of Notes to any person by such Underwriter if (A)
such Underwriter failed to send or give a copy of the Prospectus as so amended
or supplemented to that person at or prior to the confirmation of the sale of
such Notes to such person in any case where such delivery is required by the
1933 Act, and (B) the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in any preliminary
Prospectus was corrected in an amendment or supplement
14
thereto (but only if the sale to such person occurred after the Company provided
such Underwriter and the Underwriter received copies of such amendment or
supplement for distribution). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and each of the Company's directors, each of its
officers and each person, if any, who controls the Company within the meaning of
the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by such Underwriter and
specifically included in the Prospectus. This indemnity shall be in addition to
any liability which such Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the Underwriters' Information in
the Prospectus Supplement constitute the only information furnished in writing
by the several Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against one or more indemnifying parties
under this Section 6, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify the indemnifying party or
parties will not relieve it or them from any liability which it or they may have
to any indemnified party otherwise than under subsection (a) or (b) of this
Section 6 or to the extent that the indemnifying party was not adversely
affected by such omission. In case any such action is brought against an
indemnified party and it notifies an indemnifying party or parties of the
commencement thereof, the indemnifying party or parties against which a claim is
to be made will be entitled to participate therein and, to the extent that it or
they may wish, to assume the defense thereof, with counsel reasonably
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 there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses, other than reasonable costs of investigation, 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 next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Underwriters in the case of paragraph (a) of this Section 6,
representing the indemnified parties under such paragraph (a)
15
who are parties to such action or actions), or (ii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party, which will not be
unreasonably withheld, unless such indemnified party waived its rights under
this Section 6 in writing in which case the indemnified party may effect such a
settlement without such consent.
(d) If the indemnification provided for in the preceding paragraphs of
this Section 6 is unavailable or insufficient to hold harmless an indemnified
party under paragraph (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then the
Company or the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the total
discounts and/or commissions received by the Underwriters bears to the sum of
such discounts and/or commissions and the purchase price of the Notes specified
on the cover page of the Prospectus and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter be
responsible for any amount in excess of the total discounts and/or commissions
received by it with respect to the Notes purchased by such Underwriter under
this Agreement and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 6, each person who controls an Underwriter within the
meaning of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the 1933 Act or the 1934 Act, each officer of the Company and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph (d). 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 (d), notify such party or parties from whom contribution may be
sought, but 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
(d).
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company 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 Company and shall survive delivery of the
Notes to the Underwriters.
16
Section 8. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, 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 Registration Statement, any material adverse change in the
condition, financial or otherwise or any development which could reasonably be
expected to result in a prospective material adverse change, or in the earnings
or business affairs 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 or elsewhere or 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 Underwriters, impracticable to market the Notes or to enforce
contracts for the sale of the Notes, or (iii) if trading in any securities of
the Company has been suspended or materially limited by the Commission or the
applicable exchange, or if trading generally on the New York Stock Exchange, the
American Stock Exchange or on the NASDAQ National Market has been suspended,
limited or restricted or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by said
exchanges or such system or by order of the Commission, the NASD or any
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal, New York or [Wisconsin] authorities, or (v) if there has been
any decrease in the ratings of any of the securities of the Company or of the
Notes by any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the 1933 Act) or if any such organization
shall have publicly announced that it has under surveillance or review its
rating of any of the Company's securities or any of the Notes.
(b) 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 except that Sections 1, 6, and 7 shall survive
any such termination and will remain in full force and effect.
Section 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Notes that it or
they are obligated to purchase under this Agreement (the "Defaulted Notes"), the
lead Underwriter 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 Notes in
such amounts as may be agreed upon and upon the terms herein set forth; if,
however, the lead Underwriter shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Notes does not exceed 10% of the Notes,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the
17
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 Notes exceeds 10% of the Notes, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriters.
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, the lead Underwriter shall have the right to
postpone Closing Time 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.
Section 10. 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 telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, North Tower, World Financial Center, New York, New York
10281-1209, attention of Syndicate Department; notices to the Company shall be
directed to it at Firstar Corporation, 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202, attention of Jennie P. Carlson, Esq., Senior Vice President,
General Counsel and Secretary.
Section 11. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters 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 Company and their respective successors and the controlling
persons and officers, directors and trustees referred to in Section 6 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 Company and their
respective successors, and said controlling persons and officers, directors and
trustees and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 12. GOVERNING LAW AND TIME. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed in said State. Except as otherwise set
forth herein, specified times of day refer to New York City time.
Section 13. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an
18
original, but all such respective counterparts shall together
constitute one and the same instrument.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
FIRSTAR CORPORATION
By:/s/ David M. Moffett
Name: David M. Moffett
Title: Vice Chairman and
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:/s/ John R. Chrin
Authorized Signatory
For itself and the other Underwriters
named in Schedule A hereto.
20
SCHEDULE A
UNDERWRITER PRINCIPAL
AMOUNT
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .......................................... $120,000,000
Donaldson, Lufkin & Jenrette Securities Corporation....... 40,000,000
Morgan Stanley & Co. Incorporated ........................ 40,000,000
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Total .............................. $200,000,000
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