Exhibit No. 1.1
FIRST EMPIRE CAPITAL TRUST I
$150,000,000
8.234% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
by
MORGAN STANLEY & CO. INCORPORATED
UNDERWRITING AGREEMENT
January 28, 1997
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Dear Ladies and Gentlemen:
First Empire Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and First Empire State Corporation, a New York
corporation (the "Corporation"), as depositor of the Trust and as guarantor,
propose, upon the terms and conditions set forth herein to issue and sell 8.234%
Capital Securities with an aggregate liquidation amount equal to $150,000,000
(the "Capital Securities") to Morgan Stanley & Co. Incorporated, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, and Keefe, Bruyette & Woods, Inc.
(collectively, the "Underwriters"), for whom you (the "Representative") are
acting as representative.
The Capital Securities and Common Securities (as defined herein) are to be
issued pursuant to the terms of an Amended and Restated Trust Agreement dated as
of January 31, 1997 (the "Trust Agreement"), among First Empire State
Corporation, a New York corporation (the "Corporation" and, together with the
Trust, the "Offerors"), as depositor, and Bankers Trust Company ("Trust
Company"), a New York banking corporation, as property trustee ("Property
Trustee") and Bankers Trust (Delaware) ("Trust Delaware"), a Delaware banking
corporation, as Delaware trustee ("Delaware Trustee") and the holders from time
to time of undivided interests in the assets of the Trust. The Capital
Securities will be guaranteed by the Corporation on a subordinated basis and
subject to certain limitations with respect to distributions and payments upon
liquidation, redemption or otherwise (the "Guarantee") pursuant to a
Guarantee Agreement dated as of January 31, 1997 (the "Guarantee Agreement"),
between the Corporation and the Trust Company, as Trustee (the "Guarantee
Trustee"). The assets of the Trust will consist of 8.234% Junior Subordinated
Deferrable Interest Debentures, due February 1, 2027 (the "Subordinated
Debentures") of the Corporation which will be issued under a Junior Subordinated
Indenture dated as of January 31, 1997 (the "Indenture"), between the
Corporation and the Trust Company, as Trustee (the "Indenture Trustee"). Under
certain circumstances, the Subordinated Debentures will be distributable to the
holders of undivided beneficial interests in the assets of the Trust.
The Corporation and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-20027) and a related preliminary prospectus for the registration of the
Capital Securities under the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations thereunder (the "Securities Act
Regulations"). The Corporation and the Trust have prepared and filed such
amendments thereto, if any, and such amended preliminary prospectuses, if any,
as may have been required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required.
The registration statement has been declared effective under the Securities Act
by the Commission. The registration statement as amended at the time it became
effective (including the Prospectus and the documents incorporated by reference
therein pursuant to the section therein entitled "Incorporation of Certain
Documents by Reference" and all information deemed to be a part of the
registration statement at the time it became effective pursuant to Rule 430A(b)
of the Securities Act Regulations) is hereinafter called the "Registration
Statement," except that, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing Date (as
defined below), "Registration Statement" shall refer to such registration
statement as so amended. Each prospectus included in the Registration Statement,
or amendments thereof, before it became effective under the Securities Act and
any prospectus filed with the Commission by the Company with the consent of the
Underwriters pursuant to Rule 424(a) of the Securities Act Regulations
(including the documents incorporated by reference therein) is hereinafter
called the "Preliminary Prospectus." The term "Prospectus" means the final
prospectus (including the documents incorporated by reference therein), as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations. The Commission has not issued any order preventing
or suspending the use of any Preliminary
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Prospectus. The Corporation hereby agrees with the Underwriters as follows:
1. Representation and Warranties. Each of the Offerors represents and
warrants to the Underwriters that as of the date hereof and on the Closing Date
(as hereinafter defined):
(a) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements thereto will, when they become effective or
are filed with the Commission, as the case may be, conform, in all material
respects with the requirements of the Securities Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with respect to the documents
incorporated by reference, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the applicable rules and regulations under said
acts; the Trust Agreement, the Guarantee Agreement, and the Indenture conform
with the requirements of the Trust Indenture Act, and the applicable rules and
regulations thereunder; the Registration Statement did not, and any amendment
thereto will not, in each case as of the applicable effective date, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made, not misleading; and the Prospectus and any
amendment or supplement thereto will not, as of the applicable filing date and
at the Closing Date (as hereinafter defined), contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Trust or the Corporation by or on behalf of
any Underwriter in writing expressly for use in the Registration Statement or
Prospectus.
(b) The documents incorporated by reference in the Prospectus pursuant
to the section therein entitled "Incorporation of Certain Documents by
Reference," at the time they were filed with the Commission, complied in all
material respects with the requirements of the Securities Act, the Securities
Act Regulations, and did not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made, in
the light of the circumstances under which they were made, not misleading.
(c) Neither the Corporation nor the Trust is an open-end investment
company, unit investment trust or face-amount certificate company that is, or is
required to be, registered under Section 8 of the Investment Company Act of
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1940, as amended (the "Investment Company Act"), nor is either a closed-end
investment company required to be registered but not registered thereunder.
(d) Each report filed by the Corporation with the Securities and
Exchange Commission (the "SEC") under the Exchange Act, and the rules and
regulations promulgated thereunder, and incorporated by reference in the
Registration Statement, complied when filed with the SEC as to form in all
material respects with the requirements of the Exchange Act and the applicable
rules and regulations thereunder.
(e) The Trust and the Company meet the requirements for the use of
Form S-3 under the Securities Act.
(f) The Commission has not issued an order preventing or suspending
the use of the Prospectus, nor instituted proceedings for that purpose.
2. Offering. The Representative has advised the Corporation that the
Underwriters will make an offering of the Capital Securities purchased by such
Underwriters hereunder on the terms and conditions set forth in the Registration
Statement as soon as practicable after this Agreement is entered into, as in the
Representative's sole judgment is advisable. The entire proceeds from the sale
of the Capital Securities will be combined with the entire proceeds from the
sale by the Trust to the Corporation of the Trust's common securities (the
"Common Securities"), and will be used by the Trust to purchase an equivalent
amount of the Subordinated Debentures. Solely for purposes of complying with
Rule 2810 of the National Association of Securities Dealers, Inc.'s Conduct
Rules, each Underwriter, severally and not jointly, hereby represents and
warrants to, and agrees with, the Corporation that it has not solicited any
offer to buy, or offered or sold the Capital Securities, except from or to (i)
persons that it reasonably believes are "qualified institutional buyers" as
defined in Rule 144A under the Securities Act, (ii) institutions which it
reasonably believes are institutional "accredited investors" as defined in Rule
501(a)(1)-(3) of Regulation D under the Securities Act, or (iii) individual
investors for whom it reasonably believes an investment in non-convertible
investment grade preferred securities is appropriate.
3. Purchase and Delivery; Commission. The Trust hereby agrees to sell to
the Underwriters and each Underwriter, severally and not jointly, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase from the Trust the aggregate
liquidation amount of Capital Securities
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set forth opposite such Underwriter's name on Schedule I hereto.
As compensation to the Underwriters for their commitments hereunder, and in
view of the fact that the proceeds of the sale of the Capital Securities will be
used by the Trust to purchase the Subordinated Debentures of the Corporation,
the Corporation hereby agrees to pay at the Time of Delivery (as defined below)
to the Representative, for the accounts of the several Underwriters, an amount
equal to $10 per Capital Security for the Capital Securities to be delivered at
the Time of Delivery.
Except as set forth in the next paragraph, the Capital Securities to be
purchased by each Underwriter hereunder will be represented by one or more
definitive global Capital Securities in book entry form which will be deposited
by or on behalf of the Trust with The Depository Trust Company ("DTC") or its
designated custodian. The Trust will deliver the Capital Securities to the
Representative, for the account of each Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks or fedwire, payable to the order of the Trust in
Federal (same day) funds, by causing DTC to credit the Capital Securities to the
account of the Representative at DTC. The Trust will cause the certificates
representing the Securities to be made available to the Representative for
checking at least 24 hours prior to the Time of Delivery (as defined below) at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be at the offices of Cravath,
Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019, at
9:30 a.m, New York time, on January 31, 1997 (the "Closing Date") or such other
time and date as the Representative, the Corporation and the Trust may agree
upon in writing. Such time and date are herein called the "Time of Delivery".
Such Capital Securities, if any, as the Representative may request upon at
least 48 hours' prior notice to the Trust (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by and on behalf of the
Trust to the Representative for the account of certain of the Underwriters,
against payment by or on behalf of such Underwriter of the purchase price
therefor by fedwire, payable to the order of the Trust in Federal (same day)
funds. The Trust will cause the certificates representing the Capital Securities
to be made available for checking and packaging at least 24 hours prior to the
Time of Delivery at the office of the Trust Company, 4 Albany Street, New York,
New York 10006.
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4. Conditions to Closing. The several obligations of the Underwriters to
purchase and pay for the Capital Securities will be subject to the following
conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Rule 430A of the Securities Act Regulations; and at the Closing
Date, no stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued under the Securities Act or
proceedings therefor initiated or threatened by the Commission; and any request
of the Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with and there shall not
have come to the attention of the Underwriters any fact that would cause the
Underwriters to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Capital Securities, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements made, in light of the circumstances existing at
such time, not misleading.
(b) The Underwriters shall have received, on the Closing Date, a
certificate signed by the Chairman of the Board, the President, a Vice Chairman
of the Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Corporation, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement and this Agreement and that:
(i) the representations and warranties of the Corporation in this
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date and the Corporation has
complied in all material respects with all the agreements and satisfied in all
material respects all the conditions on its part to be performed or satisfied at
or prior to the Closing Date; and
(ii) since the date of the most recent financial statements
included in the Registration Statement (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial or other),
earnings, business or properties of the Corporation and its subsidiaries taken
as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Registration Statement
(exclusive of any supplement thereto).
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(c) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof), there shall not have been any change, or any development
involving a prospective change, in or affecting the business or properties of
the Corporation and its subsidiaries the effect of which is, in the judgment of
the Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Capital
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof).
(d) The Underwriters shall have received an opinion, dated the Closing
Date, of Arnold & Porter, substantially in the form attached hereto as Exhibit
A.
In rendering such opinion, counsel may state that they are passing only on
matters of New York and United States Federal law. In rendering such opinion,
counsel may rely upon an opinion or opinions, each dated the Closing Date, of
other counsel retained by them or the Corporation as to laws of any jurisdiction
other than the United States or the State of New York, provided that (A) such
reliance is expressly authorized by each opinion so relied upon and a copy of
each such opinion is delivered to the Underwriters, and (B) counsel shall state
in their opinion that they and the Underwriters are justified in relying
thereon. Insofar as such opinions involve factual matters, such counsel may
rely, to the extent such counsel deems proper, upon certificates of officers of
the Corporation, its subsidiaries and the Trust and certificates of public
officials.
(e) The Underwriters shall have received an opinion, dated the Closing
Date, of Richard A. Lammert, General Counsel to the Corporation, substantially
in the form attached hereto as Exhibit B.
In rendering such opinion, such counsel may state that he is passing only
on matters of New York and United States Federal law. Insofar as such opinions
involve factual matters, such counsel may rely, to the extent such counsel deems
proper, upon certificates of officers of the Corporation, its subsidiaries and
the Trust, and certificates of public officials.
(f) The Underwriters shall have received an opinion, dated the Closing
Date, of White & Case, counsel to the Trust Company and Trust Delaware,
substantially in the form attached hereto as Exhibit C.
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(g) The Underwriters shall have received an opinion, dated the Closing
Date, of Cravath, Swaine & Moore, counsel to the Underwriters as to such matters
as the Underwriters shall reasonably request.
In rendering such opinion, counsel may rely upon an opinion or opinions,
each dated the Closing Date, of other counsel retained by them or the
Corporation as to laws of any jurisdiction other than the United States or the
State of New York, provided that (A) such reliance is expressly authorized by
each opinion so relied upon and a copy of each such opinion is delivered to the
Underwriters, and (B) counsel shall state in their opinion that they believe
that they and the Underwriters are justified in relying thereon. Insofar as such
opinions involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Corporation, its
subsidiaries and the Trust and certificates of public officials.
(h) The Underwriters shall have received an opinion, dated the Closing
Date, of Morris, Nichols, Arsht & Tunnell , special Delaware counsel to the
Corporation and the Trust, substantially to the effect and in the form attached
hereto as Exhibit D.
(i) The Capital Securities shall have received a rating from each of
Moody's Investor Service, Inc. and Standard & Poor's Rating Services, each such
rating to be not less than the rating set forth in the Registration Statement.
(j) The Underwriters shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance reasonably satisfactory to them,
from Price Waterhouse LLP independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information, including the financial information contained or
incorporated by reference in the Registration Statement as identified by the
Representative.
(k) Prior to the Closing Date, the Corporation shall have furnished to
the Underwriters such further information, certificates and documents as the
Underwriters may reasonably request in connection with the offering of the
Capital Securities.
(l) No downgrading in the rating accorded the Capital Securities or
any other debt securities of the Corporation by any "nationally recognized
statistical rating organization" (as that term is defined by the SEC for the
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purposes of Rule 436(g)(2) under the Securities Act) shall have occurred, or any
public announcement that any such organization has under surveillance or review
their ratings of the Capital Securities or any other debt securities of the
Corporation (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating), and
if, in any such case, the effect thereof in the reasonable judgment of the
Underwriters makes it impracticable or inadvisable to proceed with the purchase
of the Capital Securities.
5. Covenants of the Offerors. In further consideration of the agreements of
the Underwriters herein contained, the Offerors covenant as follows:
(a) The Trust and the Corporation will prepare the Prospectus in a
form approved by the Underwriters and will file such Prospectus with the
Commission pursuant to subparagraph (1) or (4) of Rule 424(b) not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement. The Trust and the Corporation will
notify the Underwriters immediately, and confirm the notice in writing, (i) of
the effectiveness of the Registration Statement and any amendment thereto
(including any post-effective amendment), and of the filing of the Prospectus
pursuant to Rule 424(b), (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for such purpose. The Trust and the Corporation will make every
reasonable effort to prevent the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification and, if any such order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) The Trust and the Corporation will deliver to the Underwriters one
manually executed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference into the Prospectus),
such number of conformed copies of the Registration Statement as originally
filed and of each amendment thereto (including documents incorporated by
reference into the Prospectus but without exhibits) as such
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Underwriters may reasonably request and copies of each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus.
(c) The Trust and the Corporation will furnish to the Underwriters,
from time to time during the period when the Prospectus is required to be
delivered under the Securities Act, such number of copies of the Prospectus (as
amended or supplemented, if applicable) as they may reasonably request for the
purposes contemplated by the Securities Act or the Securities Act Regulations.
(d) The Trust and the Corporation will deliver to the Underwriters
notice of their intention to prepare or file any amendment to the Registration
Statement relating to the Capital Securities (including any post-effective
amendment) or any amendment or supplement to the Prospectus (other than
documents deemed to be incorporated by reference into the Prospectus) which the
Trust and the Corporation propose for use by the Underwriters in connection with
the offering of the Capital Securities and which differs from the prospectus on
file at the Commission at the time the Registration Statement becomes effective,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the Securities Act Regulations), will furnish the Underwriters and
counsel for the Underwriters with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file any such amendment or supplement or use any such
prospectus to which the Underwriters or counsel for the Underwriters shall
reasonably object.
(e) If, during such period after the Closing Date and prior to the
date on which the distribution of Capital Securities by the Underwriters is
completed, any event shall occur as a result of which it is necessary, in the
opinion of the Offerors' counsel, to amend or supplement the Prospectus (as then
amended or supplemented) in order to ensure that the Prospectus does not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at the Corporation's own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances under which
they were made, be misleading or so that the Prospectus will comply with law, as
the case may be.
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(f) The Trust and the Corporation, during the period when the
Prospectus is required to be delivered under the Securities Act, will file
promptly all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act subsequent to the time the Registration
Statement becomes effective.
(g) To endeavor to qualify the Capital Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any Underwriter
shall reasonably request and to pay all reasonable expenses (including
reasonable fees and disbursements of counsel) in connection with such
qualification and the printing of any memoranda concerning the aforesaid
qualification; provided, however, that neither Offeror shall be required to
qualify to do business in any jurisdiction where it is not now qualified or to
take any action which would subject it to general or unlimited service of
process in any jurisdiction where they are not now subject.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of (other than in an offering made exclusively outside the
United States) any securities of the Corporation or the Trust substantially
similar to the Capital Securities or any securities convertible into or
exchangeable for the Capital Securities without the prior written consent of the
Underwriters.
(i) During the period when the Capital Securities are outstanding, the
Corporation will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(j) Neither the Corporation nor the Trust shall enter into any
contractual agreement with respect to the distribution of the Capital Securities
except for the arrangements with the Underwriters.
(k) The Corporation will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning on the first day of the first full
fiscal quarter after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of the
Securities Act and Rule 158 of the Securities Act Regulations and will advise
you in writing when such statement has been so made available. If such fiscal
quarter is the last fiscal quarter of the
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Trust's fiscal year, such earnings statement shall be made available not later
than 90 days after the close of the period covered thereby and in all other
cases shall be made available not later than 45 days after the close of the
period covered thereby.
(l) For a period of five years (but not beyond any such date on which
no Securities shall be outstanding) after the Closing Date, the Trust and the
Corporation will furnish to the Underwriters copies of all reports and
communications delivered to the Trust's shareholders or to holders of the
Capital Securities and will also furnish copies of all reports (excluding
exhibits) filed with the Commission on Forms 8-K, 10-Q and 10-K, and all other
reports and information furnished to its shareholders generally, not later than
the time such reports are first furnished to its shareholders generally.
6. Expenses. The Corporation covenants and agrees with the Underwriters
that the Corporation will, whether or not any sale of the Capital Securities is
consummated, pay or cause to be paid the following: (i) costs of preparation and
printing (including reasonable word processing and duplication costs) of the
Registration Statement and the Prospectus, and all amendments and supplements
thereto, (ii) all expenses (including reasonable fees and disbursements of
counsel to the Corporation and the Trust) payable pursuant to Section 5 of the
Agreement, (iii) all costs and expenses incurred in connection with the
preparation, issuance and delivery of the Capital Securities, (iv) the fees and
disbursements of the Corporation's accountants, (v) all costs and expenses
incurred in the preparation and the printing (including word processing and
duplication costs) of the Capital Securities, the Indenture, the Guarantee
Agreement, the Trust Agreement and all other documents relating to the issuance,
purchase and initial resale of the Capital Securities, and (vi) all other costs
and expenses incident to the performance by the Corporation of its obligations
hereunder which are not otherwise specifically provided in this Section. The
Underwriters shall be responsible for all of their own expenses, including the
fees of the Underwriters' counsel, any taxes on resales of the Capital
Securities by the Underwriters and the costs of assigning a rating or ratings to
the Capital Securities.
7. Indemnification and Contribution. Each of the Corporation and the Trust
jointly and severally agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls each such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in the
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Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in the light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission based upon
information furnished in writing to the Corporation by the Underwriters
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Capital Securities, or any
person controlling such Underwriter, if a copy of the Registration Statement (as
then amended or supplemented if the Corporation shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Capital Securities to such persons, and if the Registration Statement (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability. This indemnity agreement shall be in addition
to any liability that the Corporation or Trust may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Corporation, the Trust, any authorized representative of
the Corporation or the Trust and any person controlling the Corporation, to the
same extent as the foregoing indemnity from the Corporation and the Trust to the
Underwriters, but only with reference to information furnished in writing by
such Underwriter expressly for use in the Registration Statement and any
amendments or supplements thereto. The Corporation and the Trust each
acknowledge that the statements set forth in the last paragraph on the outside
front cover of the Prospectus, in the penultimate paragraph of the third page of
the Prospectus, and in the third, fifth and seventh paragraphs under the caption
"Underwriting" in the Prospectus constitute the only information furnished in
writing by or on behalf of the Underwriters for use in the Registration
Statement, and the Representative confirms that such statements are correct.
This indemnity agreement shall be in addition to any liability that any
Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be threatened or instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 7, such
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person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing (but the
omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party other than under this
Section 7) and the indemnifying, party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and pay the reasonable fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and the representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. In the case of parties indemnified pursuant to paragraph
(a) of this Section 7, such separate firm shall be designated in writing by the
Representative. In the case of parties indemnified pursuant to paragraph (b) of
this Section 8, such separate firm shall be designated in writing by the
Corporation. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation and the Trust on the one hand and the Underwriters on the
other from the offering of the Capital Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
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to in clause (i) above but also the relative fault of the Corporation and the
Trust on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Corporation and the Trust on the one hand and
the Underwriters on the other in connection with the offering of such Capital
Securities shall be deemed to be in the same proportion as the total net
proceeds (before deducting expenses) from the offering of such Capital
Securities received by the Corporation bear to the total discounts and
commissions received by such Underwriter in respect thereof. The relative fault
of the Corporation and the Trust on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Corporation and the Trust or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statements or omissions.
(e) The Corporation, the Trust and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the considerations referred to in paragraph (d) of this
Section 7. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) of this
Section 7 shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
(f) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Corporation, the Trust
and the Underwriters in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of a Underwriter or any person controlling
such Underwriter, or by or on behalf of the Trust or the Corporation, its
directors or officers, any authorized representative of the Corporation or the
Trust or any person controlling the Corporation or the Trust, and (iii)
acceptance of and payment for any of the Capital Securities.
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative,
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by notice to the Corporation, if prior to the Closing Date (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Representative, impracticable to market the Capital Securities
or to enforce contracts for the resale of Capital Securities.
9. Pro Rata Purchase in Certain Events. If on the Closing Date any one or
more of the Underwriters shall fail or refuse to purchase Capital Securities
that it or they have agreed to purchase hereunder and the aggregate liquidation
amount of Capital Securities that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate liquidation amount of Capital Securities to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions which the
aggregate liquidation amount of Capital Securities set forth opposite their
names in Schedule I to this Agreement bears to the aggregate liquidation amount
of Capital Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representative may specify, to
purchase the Capital Securities that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If on the Closing Date
any Underwriter or Underwriters shall fail or refuse to purchase Capital
Securities and the aggregate liquidation amount of Capital Securities with
respect to which such default occurs is more than one-tenth of the aggregate
liquidation amount of Capital Securities to be purchased on such date, and
arrangements satisfactory to the Representative and the Corporation for the
purchase of such Capital Securities are not made within 36 hours after such
default, this Agreement shall thereupon terminate without liability on the part
of any non-defaulting Underwriters or of the Corporation or the Trust. In any
such case either the Representative or the Corporation shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement or in any other
documents or arrangements may be effected. An action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. Reimbursement upon Termination in Certain Circumstances. If this
Agreement shall be terminated by the
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Underwriters or any of them, because of any failure or refusal on the part of
the Corporation to comply in any material respect with the terms or to fulfill
in any material respect any of the conditions of this Agreement, or if for any
reason the Corporation shall be unable to perform in any material respect its
obligations under this Agreement, the Corporation shall reimburse the
Underwriters or such Underwriters as have so terminated the Agreement, with
respect to themselves, severally, for all reasonable out-of-pocket expenses
reasonably incurred by such Underwriters in connection with the offering of the
Capital Securities.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Please confirm that the foregoing correctly sets forth the agreement among the
Trust, the Corporation and the several Underwriters by having an authorized
officer sign a copy of this Agreement in the space set forth below and by
returning the signed copy to us.
Very truly yours,
FIRST EMPIRE STATE CORPORATION
By:___________________________________
Name:
Title:
FIRST EMPIRE CAPITAL TRUST I
By: FIRST EMPIRE STATE CORPORATION,
on behalf of First Empire Capital
Trust I
By:______________________________
Name:
Title:
Accepted by:
MORGAN STANLEY & CO. INCORPORATED,
as representative of the several
Underwriters named in Schedule I hereto
By:____________________________________
Name:
Title:
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SCHEDULE I
Underwriter Amount
- ----------- ------
Morgan Stanley & Co. Incorporated $ 70,000,000
Merrill Lynch, Pierce, Fenner &
Smith Incorporated $ 70,000,000
Keefe, Bruyette & Woods, Inc. $ 10,000,000
Total $150,000,000
============
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EXHIBIT A
The opinion of special counsel to the Corporation to be delivered pursuant
to Section 4(d) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by the Corporation.
2. The Trust Agreement has been duly authorized, executed and delivered by
the Corporation, and is a valid and binding obligation of the Corporation,
enforceable against the Corporation in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
3. The Guarantee Agreement has been duly authorized, executed and delivered
by the Corporation and is a valid and binding obligation of the Corporation
enforceable against the Corporation in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
4. The Indenture has been duly authorized, executed and delivered by the
Corporation, has been duly qualified under the Trust Indenture Act, and is a
valid and binding agreement of the Corporation, enforceable against the
Corporation in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, receivership,
readjustment of debt, moratorium, fraudulent conveyance or similar laws relating
to or affecting creditors' rights generally, general equity principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
5. The Subordinated Debentures have been duly authorized, executed and
delivered by the Corporation and when duly authenticated in accordance with the
Indenture and delivered and paid for in accordance with the Underwriting
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Agreement, will be valid and binding obligations of the Corporation, entitled to
the benefits of the Indenture and enforceable against the Corporation in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally, general equity principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
6. The Trust is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in Investment Company Act of
1940, as amended.
7. The statements set forth in the Registration Statement under the
captions "Description of Capital Securities," "Description of Junior
Subordinated Debentures," "Description of Guarantee" and "Relationship Among the
Capital Securities, the Junior Subordinated Debentures and the Guarantee,"
insofar as they purport to describe the provisions of the laws and documents
referred to therein, fairly summarize the matters described therein.
8. The Registration Statement was declared effective under the Securities
Act as of the date and time specified in such opinion and, to the best of such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
9. The statements of law or legal conclusions and opinions set forth in the
Registration Statement under the caption "Certain United States Federal Income
Tax Consequences," subject to the assumptions and conditions described therein,
constitute our opinion.
10. The Registration Statement and the Prospectus (other than the financial
statements and other financial and statistical information contained therein and
other than documents incorporated therein by reference, as to all of which such
counsel need express no opinion) comply as to form in all material respects with
the applicable requirements of the Act and the Trust Indenture Act and the
respective rules thereunder.
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EXHIBIT B
The opinion of counsel to be delivered by the Corporation pursuant to
Section 4(e) of the Underwriting Agreement shall be substantially to the effect
that:
1. Each of the Corporation and Manufacturers and Traders Trust Company is a
corporation validly organized and presently subsisting under the laws of the
State of New York, with requisite corporate power and authority to own its
properties and conduct its business as described in the Registration Statement,
except for such power and authority the absence of which would not have a
material adverse effect on the Corporation on a consolidated basis, and, in the
case of the Corporation, is duly registered as bank holding company under the
Bank Holding Company Act of 1956, as amended.
2. No consent, approval, authorization or order of any court or
governmental agency, authority, or body is required for the consummation by the
Corporation of the transactions contemplated by the Underwriting Agreement,
except those that have been obtained; it being understood that he expresses no
opinion as to the securities or Blue Sky laws of any jurisdiction.
3. The issuance and sale of the Capital Securities and the Subordinated
Debentures and the execution, delivery and performance by the Corporation and
the Trust of the Underwriting Agreement, the Indenture, the Guarantee Agreement
and the Trust Agreement will not violate the Articles of Incorporation or
by-laws of the Corporation, as amended to date, or any material agreement or
other instrument known to him to which the Corporation or the Trust is a party
or any material order or regulation known to him to be applicable to the
Corporation or the Trust of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Corporation.
Such counsel shall further state that nothing has come to his attention
that has caused him to believe that the Registration Statement (except for the
financial statements and schedules and other financial or statistical data
contained or incorporated therein, as to which he need express no belief),
including the documents incorporated by reference therein, as of the date of the
Registration Statement, contained, and as of the date of such opinion, contains
any untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the
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light of the circumstances under which they were made, not misleading.
4. 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 Corporation 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, 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; and the statements included or incorporated in the Prospectus
describing any legal proceedings or material contracts or agreements relating to
the Corporation fairly summarize such matters. The opinion set forth in this
paragraph need not express any view as to matters covered by the opinion of
Arnold & Porter delivered pursuant to Section 4(d) of the Underwriting
Agreement.
5. The documents incorporated by reference into the Registration Statement
and the Prospectus (other than the financial statements and other financial and
statistical information contained therein, as to which such counsel need express
no opinion) complies as of their respective dates as to form in all material
respects with the applicable requirements of the Exchange Act and the rules
thereunder.
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EXHIBIT C
The opinion of counsel to the Trust Company and Trust Delaware to be
delivered pursuant to Section 4(f) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of New York.
2. Trust Delaware is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware.
3. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of the Indenture.
4. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
5. The Property Trustee has the requisite power and authority to execute
and deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
6. The Delaware Trustee has the requisite power and authority to execute
and deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
7. Each of the Indenture and the Guarantee Agreement has been duly executed
and delivered by the Indenture Trustee and the Guarantee Trustee, respectively,
and constitutes a legal, valid and binding obligation of the Indenture Trustee
and the Guarantee Trustee, respectively, enforceable against the Indenture
Trustee and the Guarantee Trustee, respectively in accordance with its
respective terms, except that certain payment obligations may be enforceable
solely against the assets of the Trust and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, liquidation,
fraudulent conveyance and transfer or other similar laws applicable to Delaware
banking corporations affecting the enforcement of creditors' rights
-24-
generally, and by general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
8. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
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EXHIBIT D
FORM OF OPINION OF MORRIS, NICHOLS, ARSHT & TUNNELL,
SPECIAL DELAWARE COUNSEL TO THE COMPANY AND
THE TRUST TO BE DELIVERED PURSUANT TO SECTION 7(h)
1. The Trust has been duly created and is validly existing in good standing
as a business trust under the Delaware Business Trust Act, 12 Del. C. 3801 et
seq. (the "Delaware Act"), with the business trust power and authority to own
its property and to conduct its business as described in the Registration
Statement and to execute and deliver, and to perform its obligations under, the
Underwriting Agreement, and issue and perform its obligations under the Capital
Securities and the Common Securities.
2. The Common Securities have been duly authorized for issuance by the
Trust Agreement and, when issued and delivered by the Trust to the Company
against payment therefor in accordance with the terms of the Trust Agreement and
as described in the Registration Statement, will be validly issued and (subject
to the terms of the Trust Agreement) fully paid and non-assessable undivided
beneficial interests in the assets of the Trust. Under the Delaware Act and the
Trust Agreement, the issuance of the Common Securities is not subject to
preemptive or other similar rights. We note that the Holders of Common
Securities will be liable for the debts and obligations of the Trust to the
extent provided in Section 4.8 of the Trust Agreement and will be required to
make payment or provide indemnity or security as set forth in the Trust
Agreement.
3. The Capital Securities have been duly authorized for issuance by the
Trust Agreement and, when issued and delivered in accordance with the terms of
the Trust Agreement, against payment of the consideration as set forth in the
Underwriting Agreement, the Capital Securities will be validly issued and
(subject to the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust. The Holders of the
Capital Securities will be entitled to the benefits of the Trust Agreement
(subject to the limitations set forth in Paragraph 5 below) and will be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law;
provided that we express no opinion as to any Holder of a Capital Security that
is, was, or becomes a named Trustee of the Trust. We note that the Holders of
Capital Securities will be required to make
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payment or provide indemnity or security as set forth in the Trust Agreement.
4. All necessary trust action has been taken to duly authorize the
execution, delivery and performance by the Trust of the Underwriting Agreement.
5. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Property Trustee and the Delaware Trustee, enforceable against
the Company and the Property Trustee and the Delaware Trustee in accordance with
its terms, except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, receivership, liquidation, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and remedies, (ii) general principles of equity
(regardless of whether considered and applied in a proceeding in equity or at
law) and (iii) considerations of public policy and the effect of applicable law
relating to fiduciary duties.
6. The issuance and sale by the Trust of the Capital Securities and the
Common Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
7. Assuming that the Trust derives no income from or connected with
services provided within the State of Delaware and has no assets, activities
(other than having a Delaware Trustee as required by the Delaware Act and the
filing of documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any Delaware
court or Delaware governmental authority or agency (other than as may be
required under the securities or blue sky laws of the State of Delaware as to
which we express no opinion) is required to be obtained by the Trust in
connection with the issuance and sale or delivery of the Capital Securities.
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