EXHIBIT 1.3
[Common Stock]
BANK OF AMERICA CORPORATION
UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Bank of America Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), __________ shares (the "Initial Shares") of the Company's
common stock (the "Common Stock"). Such Initial Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are listed in
Schedule II opposite the name of each Underwriter. The Company also grants to
the Underwriters, severally and not jointly, the option described in Section
2(c) to purchase up to _____ additional shares (the "Option Shares"; together
with the Initial Shares, the "Shares") of Common Stock to cover over-allotments.
The Common Stock is more fully described in the Final Prospectus, referred to
below. If the firm or firms listed in Schedule II hereto include only the firm
or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter, as of the date hereof and as of the date of
the Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration under the Act
of the Shares. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1) under the
Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 or Rule
434 under the Act a supplement to the form of prospectus included in such
registration statement relating to the Shares and the plan of distribution
thereof and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth therein.
Such registration statement, including the exhibits thereto, as amended at
the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424 or Rule
434 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424
hereinafter is called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, and the
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 or Rule 434 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as
hereinafter defined), (i) the Registration Statement as amended as of any
such time, and the Final Prospectus, as amended or supplemented as of any
such time, will comply in all material respects with the applicable
requirements of the Act, and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company the respective number of Initial
Shares set forth opposite such Underwriter's name in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of Initial Shares pursuant to
delayed delivery arrangements, the respective amounts of Initial Shares to be
purchased by the Underwriters shall be set forth in Schedule II hereto, less the
respective amounts of Contract Securities determined as provided below. Shares
to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Shares to be
purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Initial Shares from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the purchase price set forth
on Schedule I hereto, of the Initial Shares for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The Company
will make Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the Company but,
except as the Company may otherwise agree, each such Delayed Delivery Contract
must be for not less than the minimum amount of Initial Shares set forth in
Schedule I hereto and the aggregate amount of Contract Securities may not exceed
the maximum aggregate amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The amount of Initial Shares to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total amount of Contract Securities
as the amount of Initial Shares set forth opposite the name of such Underwriter
bears to the aggregate amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total amount of Initial Shares to be purchased by all Underwriters shall be the
aggregate amount set forth in Schedule II hereto, less the aggregate amount of
Contract Securities.
(b) The initial public offering price and the purchase price of the
Initial Shares shall be set forth in a separate written instrument (the "Pricing
Agreement") signed by the Representatives and the Company, the form of which is
attached hereto as Schedule IV. From and after the execution and delivery of the
Pricing Agreement, this Agreement shall be deemed to include the Pricing
Agreement. The purchase price per share to be paid by the several Underwriters
for the Initial Shares shall be an amount equal to the initial public offering
price, less an amount per share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations and warranties
contained herein, and subject to the terms and conditions set forth herein, the
Company grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option Shares at the same price per share
determined as provided above for the Initial Shares. The option hereby granted
will expire 30 days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once), only for the purpose of
covering over-allotments upon notice by the Representatives to the Company
setting forth the number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment and delivery
thereof. Such time and date of Delivery (the "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any event prior to
the Closing Date (as defined below). If the option is exercised as to all or any
portion of the Option Shares, the Option Shares as to which the option is
exercised shall be purchased by the Underwriters severally and not jointly, in
proportion to, as
nearly as practicable, their respective Initial Shares underwriting obligations
as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the Initial Shares
shall be made on the date and at the time specified in the Pricing Agreement,
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Initial Shares being herein called the "Closing
Date"). Delivery of the Initial Shares shall be made to the Representatives for
the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Initial Shares shall be in the form set forth in Schedule I
hereto, and such certificates may be deposited with The Depository Trust Company
("DTC") or a custodian for DTC and registered in the name of Cede & Co., as
nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares shall
be made at the office specified for delivery of the Initial Shares in the
Pricing Agreement, or at such other place as the Company and the Representatives
shall determine, on the Date of Delivery as specified in the notice from the
Representatives to the Company. Delivery of the Option Shares shall be made to
the Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Option Shares shall be in the form set forth in Schedule I
hereto, and such certificates shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Shares, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the Commission pursuant to
Rule 424 or Rule 434 via the Electronic Data Gathering, Analysis and
Retrieval System. The Company will advise the Representatives promptly (i)
when the Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 or Rule 434, (ii) when any amendment to the
Registration Statement relating to the Shares shall have become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, except with respect to any such
delivery requirement imposed upon an affiliate of the Company in
connection with any secondary market sales, any event occurs as a result
of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of the Shares for
sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Shares and will arrange for the
determination of the legality of the Shares for purchase by institutional
investors; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any securities covered by the Registration
Statement or by any other registration statement filed under the Act;
provided, however, the Company may, at any time, offer or sell or announce
the offering of any securities (A) covered by a registration statement on
Form S-8 or (B) covered by a registration statement on Form S-3 and (i)
pursuant to which the Company issues securities under one of the Company's
medium-term note programs or (ii) pursuant to which the Company issues
securities for its dividend reinvestment plan.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the
representations and warranties on the part of the Company contained herein as of
the date hereof, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date (including the filing of
any document incorporated by reference therein) and as of the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Smith Helms Mulliss & Moore, L.L.P., counsel for the Company,
dated the Closing Date, to the effect of paragraphs (i), (iv) and (vi)
through (xii) below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of paragraphs (ii),
(iii) and (v) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended; Bank of America,
N. A. (or the successor to such entity)(the "Principal Subsidiary
Bank") is a national banking association formed under the laws of
the United States and authorized thereunder to transact business;
(ii) each of the Company and the Principal Subsidiary Bank is
qualified or licensed to do business as a foreign corporation in any
jurisdiction in which such counsel has knowledge that the Company or
the Principal Subsidiary, as the case may be, is required to be so
qualified or licensed;
(iii) all the outstanding shares of capital stock of the
Principal Subsidiary Bank have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss.
55, as amended) nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Principal Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the Shares conform in all material respects to the
description thereof contained in the Final Prospectus;
(v) if the Shares are to be listed on the [______] Stock
Exchange, authorization therefor has been given, subject to official
notice of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all required
supporting documents with respect
to the Securities with the [________] Stock Exchange and such
counsel received no information stating that the Initial Shares will
not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(vi) such counsel is without knowledge that (1) there is any
pending or threatened action, suit or proceeding before or by any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, or (2) any franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit to the Registration Statement, is not so described or
filed as required;
(vii) the Registration Statement has become effective under
the Act; such counsel is without knowledge that any stop order
suspending the effectiveness of the Registration Statement has been
issued or any proceedings for that purpose have been instituted or
threatened; and the Registration Statement, the Final 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 Act and
the Exchange Act and the respective rules thereunder;
(viii) this Agreement, the Pricing Agreement and any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company and each constitutes a legal, valid and binding
agreement of the Company 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. ss.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 on behalf of the Company
for the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky or
insurance laws of any jurisdiction in connection with the purchase
and distribution of the Shares by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(x) neither the issue and sale of the Shares, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach of, or constitute a
default under the certificate of
incorporation or by-laws of the Company or (1) the terms of any
material indenture or other agreement or instrument known to such
counsel and to which the Company or the Principal Subsidiary Bank is
a party or bound, or (2) any order or regulation known to such
counsel to be applicable to the Company or the Principal Subsidiary
Bank of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or the Principal Subsidiary Bank;
(xi) such counsel is without knowledge of rights to the
registration of securities of the Company under the Registration
Statement which have not been waived by the holders of such rights
or which have not expired by reason of lapse of time following
notification of the Company's intention to file the Registration
Statement; and
(xii) the Initial Shares, any Option Shares as to which the
option granted in Section 2 has been exercised and the Date of
Delivery determined by the Representatives to be the same as the
Closing Date, have been duly authorized and, when paid for as
contemplated herein, will be duly issued, fully paid and
nonassessable.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has not
independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it 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 Final 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.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of North Carolina or the United States, the General
Corporate Law of Delaware, 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 (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 Representatives shall have received from Stroock & Stroock &
Lavan LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Initial
Shares, the Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and Chief
Executive Officer or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that
to the best of their knowledge:
(i) 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;
(ii) 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; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published
rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Final
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and
the Exchange Act and the regulations thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting
of:
(a) Reading the minutes of the meetings of the shareholders,
the board of directors, executive committee and audit committee of
the Company and the boards of directors and executive committees of
its subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Final Prospectus and reading the
unaudited interim financial data, if any, for the period from the
date of the latest balance sheet included or incorporated by
reference in the Registration Statement and Final Prospectus to the
date of the latest available interim financial data; and
(c) Making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to the unaudited
condensed consolidated interim financial statements, included or
incorporated by reference in the Registration Statement and Final
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available interim financial
data and at the specified date not more than five business days
prior to the date of the delivery of such letter, there was any
change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis
as compared with the amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement
and the Final Prospectus or (ii) for the period from the date of the
latest available financial data to a specified date not more than
five business days prior to the delivery of such letter, there was
any change in the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases which the
Registration Statement and Final Prospectus discloses have occurred
or may occur, or PricewaterhouseCoopers LLP shall state any specific
changes or decreases.
(iv) The letter shall also state that PricewaterhouseCoopers
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information which are included or incorporated by
reference in the Registration Statement and Final Prospectus and
which are specified by the Representatives and agreed to by
PricewaterhouseCoopers LLP, and has found such amounts, percentages
and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5 or (ii) any change,
or any development involving a prospective change, in or affecting the
earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the delivery
of the Shares as contemplated by the Registration Statement and the Final
Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the copying of this Agreement and the Pricing Agreement,
(iii) the preparation, issuance and delivery of the certificates for the Shares
to the Underwriters, including capital duties, stamp duties and stock transfer
taxes, if any, payable upon issuance of any of the Shares, the sale of the
Shares to the Underwriters and the fees and expenses of the transfer agent for
the Shares, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Shares under state securities laws in
accordance with the provisions of Section 4(e), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies
of the Blue Sky Survey, and (viii) the fee of the National Association of
Securities Dealers, Inc. and, if applicable, the ____________ Stock Exchange.
If the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in Section 5
hereof is not satisfied or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares.
7. Conditions to Purchase of Option Shares. In the event the Underwriters
exercise the option granted in Section 2(c) hereof to purchase all or any
portion of the Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for the Option
Shares that they shall have respectively agreed to purchase hereunder are
subject to the accuracy of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
any required filing of the Final Prospectus pursuant to Rule 424(b) or
Rule 434 under the Act shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the Option
Shares:
(i) the favorable opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, to the same effect as the opinion
required by Section 5(b);
(ii) the favorable opinion of Paul J. Polking, Esq., General
Counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(b);
(iii) the favorable opinion of Stroock & Stroock & Lavan LLP,
counsel for the Underwriters, to the same effect as the opinion
required by Section 5(c);
(iv) a certificate, of the Chairman of the Board and Chief
Executive Officer or Senior Vice President of the Company and of the
principal financial or accounting officer of the Company with
respect to the matters set forth in Section 5(d);
(v) a letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to the Underwriters, substantially the same
in scope and substance as the letter furnished to the Underwriters
pursuant to Section 5(e) except that the "specified date" in the
letter furnished pursuant to this Section 7(b)(v) shall be a date
not more than five days prior to the Date of Delivery;
(vi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (b)(v)
of this Section 7 or (ii) any change, or any development involving a
prospective change, in or affecting the earnings, business or
properties of the Company and its subsidiaries the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the
delivery of the Shares as contemplated by the Registration Statement
and the Final Prospectus; and
(vii) such other information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Date of Delivery by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof,
or arises out of or is based upon statements in or omissions from that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification of the Trustee (Form T-1) under the 1939 Act of either of the
Trustees, and (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Shares which are the subject thereof if such person did
not receive a copy of the Final Prospectus (or the Final Prospectus as amended
or supplemented) excluding documents incorporated therein by reference at or
prior to the confirmation of the sale of such Shares to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange 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 or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
language on the cover page required by Item 509 of Regulation S-K and under the
heading "Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a), representing
the indemnified parties under subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or otherwise, the Company
and 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 one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement 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).
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Shares set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Shares, and
if such nondefaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Shares, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such exchange, (ii) a
banking moratorium shall have been declared either by Federal authorities or
(iii) there shall have occurred any outbreak or material 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 judgment of the
Representatives, impracticable to market the Shares.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Shares. The provisions of Section 6 and
8 hereof and this Section 11 shall survive the termination or cancellation of
this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New
York, New York 10038, Attn: James R. Tanenbaum; or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at Bank of America
Corporate Center, 100 North Tryon Street, Charlotte, North Carolina 28255,
attention of the Secretary, with a copy to each of: Bank of America Corporation,
Bank of America Corporate Center, 100 North Tryon Street, Legal Department, NC
1007-20-1, Charlotte, North Carolina 28255, Attn: Paul J. Polking, General
Counsel; and Smith Helms Mulliss & Moore, L.L.P., 201 North Tryon Street,
Charlotte, North Carolina 28202, Attn: Boyd C. Campbell, Jr.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:__________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated ___________, ____
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by the
Representatives and the Company, by certified or official bank check or
checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts: ________________
Additional items to be covered by the letter
from PricewaterhouseCoopers LLP delivered
pursuant to Section 5(e) at the
time this Agreement is executed: _____________________________
-1-
SCHEDULE II
Principal Amount of
Initial Shares to
Underwriters be Purchased
- ------------ ----------------
-2-
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Bank of America Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on , ,
(the "Delivery Date"), shares of the Company's Common Stock (the "Shares")
offered by the Company's Final Prospectus dated , , receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal amount
thereof, plus accrued interest, if any, thereon from , , to the date of
payment and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Shares to be purchased by the undersigned shall be made on
or before 11:00 A.M. on the Delivery Date to or upon the order of the Company in
New York Clearing House (next day) funds, at your office or at such other place
as shall be agreed between the Company and the undersigned upon delivery to the
undersigned of the Shares in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no request is
received, the Shares will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate amount of Shares to be purchased
by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Shares on the Delivery Date, and the obligation of the Company to sell and
deliver Shares on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Shares to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such amount of the
Shares as is to be sold to them pursuant to the Underwriting Agreement referred
to in the Final Prospectus mentioned above. Promptly after completion of such
sale to the Underwriters, the Company will mail or deliver to the undersigned at
its address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Shares, and the obligation of the Company to cause the Shares to
be sold and delivered, shall not be affected by the failure of any purchaser to
take delivery of and make payment for the Shares pursuant to other contracts
similar to this contract.
-3-
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to principles of
conflict of laws.
Very truly yours,
-----------------------------
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
--------------------------------
(Address)
Accepted:
BANK OF AMERICA CORPORATION
By:____________________________
(Authorized Signature)
-4-
SCHEDULE IV
_________ Shares
BANK OF AMERICA CORPORATION
(a Delaware corporation)
Common Stock
PRICING AGREEMENT
-----------------
[Date]
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated _____________
__, ___ (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule I thereto, for whom you are acting as
representatives (the "Representatives"), of the above shares of Common Stock
(the "Initial Shares"), of Bank of America Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 9:30 A.M., New York City time, on __________
__, 199_ at the offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane LLP,
New York, New York 10038.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be paid by
the several Underwriters shall be $__.__, being an amount equal to the initial
public offering price set forth above less $_.__ per share.
-1-
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
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
BANK OF AMERICA CORPORATION
By:_____________________
Name:
Title:
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
-2-
SCHEDULE A
-3-