Exhibit 1.2
PNC Bank Corp.
[Preferred Stock
($1.00 par value)]
[Common Stock
($5.00 par value)]
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:
PNC Bank Corp., a Pennsylvania corporation (the "Corporation"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the number of shares of preferred stock and/or common stock
of the Corporation identified in Schedule I hereto (said shares to be issued
and sold by the Corporation being hereinafter called the "Underwritten
Securities"). The Corporation also proposes to grant to the Underwriters an
option to purchase up to such additional number of shares of preferred stock
and/or common stock of the Corporation as is specified in Schedule I hereto
(the "Option Securities"; together with the Underwritten Securities, the
"Securities") to cover over-allotments. If "Depositary Receipt Arrangements" is
specified in Schedule I hereto, the Securities are to be deposited by you or on
your behalf against delivery of Depositary Receipts (the "Depositary Receipts")
to be issued by the bank or trust company identified in Schedule I hereto as
Depositary (the "Depositary"), under the deposit agreement described in
Schedule I hereto (the "Deposit Agreement"), among the Corporation, the
Depositary and the holders from time to time of the Depositary Receipts issued
thereunder. Any Depositary Receipts will
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evidence Depositary Shares (the "Depositary Shares") and each Depositary Share
will represent a fraction of a Security, as specified in Schedule I hereto.
Except where the context otherwise requires, references to Securities herein
shall include any related Depositary Shares and associated Depositary Receipts.
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, shall each be deemed to refer to such firm
or firms.
1. Representations and Warranties. The Corporation represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Corporation meets the requirements for the use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto), on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Corporation may have filed one or more amendments
thereto, and may have used a Preliminary Final Prospectus, each of
which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, accordingly, it is not
necessary that any further information with respect to the Securities
and the offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus have been included in an
amendment to such registration statement prior to the Effective Date.
The Corporation will next file with the Commission pursuant to Rules
415 and 424(b)(2) or (5) a final supplement to the form of prospectus
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included in such registration statement relating to the Securities
and the offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the Securities
and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Corporation has advised you,
prior to the Execution Time, will be included or made therein.
(ii) The Corporation meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Securities. The
Corporation may have filed one or more amendments thereto, including
a Preliminary Final Prospectus, each of which has previously been
furnished to you. The Corporation will next file with the Commission
either (x) a final prospectus supplement relating to the Securities
in accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to
the effectiveness of such registration statement, an amendment to
such registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Corporation included in
such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act
and the rules thereunder to be included in the Final Prospectus with
respect to the Securities and the offering thereof. As filed, such
final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with respect to
the Securities and the offering thereof and, except to the extent the
Representatives shall
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agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Corporation has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or 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, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Corporation makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Corporation by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Registration Statement or the Final Prospectus (or any
supplement thereto).
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(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred to
in paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean
any preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus,
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to
in paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement as so amended. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. 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
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under the Exchange Act on or before the Effective Date of the Registration
Statement 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, any 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 Effective Date
of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the effective
date thereof. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the effective
date of a registration statement, with the result that only information
required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the securities so
offered. Whether the offering of the Securities is a Non-Delayed Offering
or a Delayed Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. (a) (i) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Corporation agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Corporation, at the purchase
price set forth in Schedule I hereto the number of shares of the Securities set
forth opposite such Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective number of shares of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto less
the respective number of shares of Contract Securities determined as provided
below. Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Securities to
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be purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities."
(a)(ii) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Corporation
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Corporation may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Corporation will pay
to the Representatives, for the account of the Underwriters, on the Closing
Date, the percentage set forth in Schedule I hereto of the aggregate
liquidation preference of the Securities 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
Corporation will enter into Delayed Delivery Contracts in all cases where sales
of Contract Securities arranged by the Underwriters have been approved by the
Corporation but, except as the Corporation may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum number of
shares set forth in Schedule I hereto and the aggregate number of shares of
Contract Securities may not exceed the maximum aggregate number of shares 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
number of shares of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by the number of shares which shall bear
the same proportion to the total number of shares of Contract Securities as the
number of shares of Securities set forth opposite the name of such Underwriter
bears to the aggregate number of shares 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 Corporation in writing; provided, however,
that the total number of shares of Securities to be purchased by all
Underwriters shall be the aggregate number of shares set forth in Schedule II
hereto less the aggregate number of shares of Contract Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties
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herein set forth, the Corporation hereby grants an option to the several
Underwriters to purchase, severally and not jointly, the Option Securities at
the same purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the Underwriters.
Said option may be exercised in whole or in part at any time (but not more than
once) on or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Corporation setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. Delivery of
certificates for the shares of Option Securities, and payment therefor, shall
be made as provided in Section 3 hereof. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing the Underwritten
Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and
time may be postponed by agreement among the Representatives, the Corporation
or as provided in Section 8 hereof (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities 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
to or upon the order of the Corporation by wire transfer of immediately
available funds. Delivery of the Underwriters' Securities shall be made at such
location in The City of New York as the Representatives shall reasonably
designate at least one business day in advance of the Closing Date and payment
for the Securities shall be made at the office specified in Schedule I hereto.
Certificates for the Underwriters' Securities shall be registered in such names
(including the nominee for any depositary which will hold Securities to be
established for "book entry" issuance
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and transfer) and in such denominations as the Representatives may request not
less than two full business days in advance of the Closing Date.
The Corporation agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 p.m. on the business day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after
the third business day prior to the Closing Date, the Corporation will deliver
(at the expense of the Corporation) to the Representatives, at such location in
The City of New York as the Representatives shall reasonably designate, on the
date specified by the Representative (which shall be within three business days
after exercise of said option), certificates for the Option Securities in such
names and denominations as the Representatives shall have requested against
payment of the purchase price thereof to or upon the order of the Corporation
by wire transfer of immediately available funds. If settlement for the Option
Securities occurs after the Closing Date, the Corporation will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 5 hereof.
Notwithstanding the preceding paragraphs, if "Depositary Receipt
Arrangements" is specified in Schedule I hereto, certificates representing
Securities shall be delivered in the names of the Representatives. Such
certificates shall be delivered by the Representatives to the Depositary
against delivery of Depositary Receipts representing Depositary Shares. Such
Depositary Receipts shall be issued in such denominations and registered in
such names as the Representatives shall request and shall be made available for
inspection, checking and packaging by the Representatives in New York, New York
not later than 1:00 p.m. on the business day prior to the due date for delivery
hereof.
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4. Agreements. The Corporation agrees with the several Underwriters
that:
(a) The Corporation will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Corporation will not file any amendment to
the Registration Statement or supplement (including the Final Prospectus
or any Preliminary Final Prospectus) to the Basic Prospectus unless the
Corporation 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 Corporation will
cause the Final Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Corporation
will promptly advise the Representatives (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) 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 (vi) of the receipt by the Corporation of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Corporation 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 Securities is
required to be
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delivered under the Act, any event occurs as a result of which the Final
Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Corporation promptly
will prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Corporation will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Corporation and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Corporation will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) 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 supplement
thereto as the Representatives may reasonably request. The Corporation
will pay the expenses of printing or other production of all documents
relating to the offering.
(e) The Corporation will use its best efforts to arrange for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will arrange for the determination of the legality of the
Securities for purchase by institutional investors; provided, however,
that the Corporation shall not 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.
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(f) Until the date specified on Schedule I hereto, the Corporation
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, (i) any shares of preferred
stock or common stock covered by the Registration Statement or any other
registration statement filed under the Act, or (ii) if the Securities are
convertible into other securities of the Corporation, any of such other
securities, in each case other than shares of common or preferred stock of
the Corporation issued pursuant to warrants to purchase any such shares,
issued upon conversion of the Corporation's outstanding convertible
debentures or issued pursuant to any employee benefit or dividend
reinvestment plan of the Corporation in effect at the Execution Time.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Corporation contained herein as of the Execution
Time and the Closing Date, to the accuracy in all material respects of the
statements of the Corporation made in any certificates pursuant to the
provisions hereof, to the performance in all material respects by the
Corporation of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 p.m. New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m.
New York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 p.m. New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall
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have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Corporation shall have furnished to the Representatives the
opinion of Melanie S. Cibik, Esq., Senior Counsel of the Corporation,
dated the Closing Date, to the effect that:
(i) the Corporation is a corporation validly organized and
presently subsisting under the laws of the Commonwealth of
Pennsylvania with all requisite corporate power and authority to own
its properties and conduct its business as described in the Final
Prospectus, except for such power and authority the absence of which
would not have a material adverse effect on the Corporation, and is
duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended;
(ii) PNC Bank, National Association ("PNC Bank, N.A.") is a
national banking organization validly existing in good standing under
the laws of the United States, with all requisite corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Final Prospectus, except for such power
and authority the absence of which would not have a material adverse
effect on PNC Bank, N.A.;
(iii) all the outstanding shares of capital stock of PNC Bank,
N.A. have been duly and validly authorized and issued and (except as
provided in 12 U.S.C. Section 55) are fully paid and nonassessable,
and, except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of PNC Bank, N.A. are owned by the
Corporation either directly or through wholly owned subsidiaries free
and clear of any perfected security interest and, to the knowledge of
such counsel, any other security interests, claims, liens or
encumbrances;
(iv) the Corporation's authorized equity capitalization, if set
forth in the Final Prospectus, is as set forth in the Final
Prospectus; the Securities and any Depositary Receipts conform in all
material respects to
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the description thereof contained in the Final Prospectus; the
Securities have been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid an nonassessable and, if the Securities
or related Depositary Shares are to be listed on any stock exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the
Corporation has filed a preliminary listing application and all
required supporting documents with respect to the Securities or such
Depositary Shares, if any, with such stock exchange and nothing has
caused such counsel to believe that the Securities or such Depositary
Shares, if any, will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
(v) 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 Final Prospectus, and there is no 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, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus
describing any legal proceedings or material contracts or agreements
relating to the Corporation or any of its subsidiaries fairly
summarize such matters in all material respects;
(vi) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the
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effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened, and
the Registration Statement and the Final Prospectus (other than the
financial statements and other financial and statistical information
contained or incorporated therein, and that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act, as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of
that Act and the Exchange Act and the respective rules thereunder;
and nothing has come to the attention of such counsel that has caused
such counsel to believe that at the Effective Date the Registration
Statement 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 includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading except that such counsel does not express any
opinion or belief as to the financial statements or schedules or
other data of a statistical or financial nature included or
incorporated therein or as to that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act;
(vii) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Corporation and,
if any Depositary is also a subsidiary, by such Depositary;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required 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
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under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as have been
obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or of any Deposit Agreement or
Delayed Delivery Contracts will (A) violate the charter or by-laws of
the Corporation, or (B) violate, result in a breach of, or constitute
a default under the terms of any material indenture or other material
agreement or instrument known to such counsel and to which the
Corporation or PNC Bank, N.A. is a party or bound, or (C) violate any
material order or regulation known to such counsel to be applicable
to the Corporation or PNC Bank, N.A. of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Corporation or PNC Bank, N.A.; and
(x) no holders of securities of the Corporation have rights to
the registration of such securities under the Registration Statement.
In rendering such opinion, such counsel will opine only as to matters involving
the application of the laws of the Commonwealth of Pennsylvania or the United
States and may rely (A) as to matters involving the application of laws of any
jurisdiction other than the Commonwealth of Pennsylvania or the United States,
to the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are reasonably
satisfactory to counsel for the Underwriters, except that it will not be
required that such counsel obtain an opinion of New York counsel as to matters
of New York law in order to render such opinion or that such counsel express an
opinion as to matters arising under the laws of any jurisdiction other than the
laws of the Commonwealth of Pennsylvania and matters of federal law arising
under the laws of the United States of America, and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Corporation and public officials. References to the Final Prospectus in this
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paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, any
Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Corporation
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(d) The Corporation shall have furnished to the Representatives a
certificate of the Corporation, 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, the
Final Prospectus, any supplement to the Final Prospectus 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;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Corporation's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
- 18 -
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 Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, Ernst & Young 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 they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or incorporated
in the Registration Statement and the Final Prospectus and reported
on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Corporation
and its subsidiaries; carrying out certain specified procedures (but
not an audit in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the shareholders and directors of the
Corporation and the audit and executive committees thereof and
inquiries of certain officials of the Corporation who have
responsibility for financial and accounting matters of the
Corporation and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited consolidated
financial statements in or incorporated in the Final Prospectus,
nothing came to their attention which caused them to believe that:
(1) any unaudited consolidated financial statements included or
incorporated in the
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Registration Statement and the Final Prospectus do not comply in form
in all material respects with applicable accounting requirements and
with the published rules and regulations of the Commission with
respect to the financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and said
unaudited consolidated financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements included or incorporated in the Registration
Statement and the Final Prospectus; or (2) with respect to the period
subsequent to the date of the most recent audited consolidated
financial statements incorporated in the Registration Statement and
the Final Prospectus, there were, at a specified date not more than
five business days prior to the date of the letter, any increases in
borrowed funds of the Corporation and its subsidiaries or any
decreases in the capital stock (defined as each of the individual
dollar amounts of preferred stock, common stock and capital surplus)
of the Corporation or the stockholders' equity of the Corporation as
compared with the amounts shown on the most recent consolidated
balance sheet incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of the most recent
audited or unaudited consolidated financial statements incorporated
in the Registration Statement and the Final Prospectus to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in total or per share
amounts of consolidated net income of the Corporation or consolidated
net interest income except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Corporation as to the
significance thereof unless said explanation is not deemed necessary
by the Representative; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
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accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Corporation and its subsidiaries)
set forth in the Registration Statement and the Final Prospectus,
including the information included or incorporated in Items 1, 5, 6
and 7 of the Corporation's Annual Report on Form 10-K for the most
recent fiscal year incorporated in the Registration Statement and the
Final Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Corporation's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and
Final Prospectus, agrees with the accounting records of the
Corporation and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
If provided for in Schedule I hereto, at the Execution Time, Ernst &
Young shall have furnished to the Representatives a letter or letters, dated as
of the Execution Time, in form and substance satisfactory to the
Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), 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 business or properties of the Corporation 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 Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
- 21 -
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Corporation's equity securities by
Moody's Investors Service, Inc., or Standard & Poor's Corporation.
(h) Prior to the Closing Date, the Corporation shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request in connection with
the offering of the Securities.
(i) The Corporation shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Corporation.
(j) Any Deposit Agreement shall have been duly executed by the
Corporation and the Depositary.
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 counsel for the Underwriters, 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 Corporation in writing or by telephone
or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Corporation to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Corporation will reimburse the
Underwriters severally upon demand for all reasonable 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
- 22 -
sale of the Securities. In no event shall the Corporation be liable to the
Underwriters for loss of anticipated profits from the transactions contemplated
by this Agreement.
7. Indemnification and Contribution. (a) The Corporation 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 for the
registration of the Securities and any related Depositary Shares as originally
filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, 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 Corporation 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 Corporation by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation thereof, or that part of the Registration Statement constituting
the "Statement of Eligibility and Qualification" (Form T-1) of the Trustee
under the Trust Indenture Act, 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 Securities or any related Depositary Shares which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the
- 23 -
confirmation of the sale of such Securities or Depositary Shares, if any, 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 supplemented). This indemnity agreement
will be in addition to any liability which the Corporation may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Corporation, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Corporation within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Corporation to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Corporation 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 Corporation
acknowledges that the statements set forth in the last paragraph of the cover
page, the first paragraph of the second page and under the heading
"Underwriting" or "Plan of Distribution" and, if Schedule I hereto provides for
sales of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" 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
7 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 7, 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 7. 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
- 24 -
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 such
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (plus any local counsel), approved by the Representatives in
the case of paragraph (a) of this Section 7, representing the indemnified
parties under such paragraph (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) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Corporation on grounds of policy or
otherwise, the Corporation, on the one hand, and the Underwriters, on the other
hand, shall contribute to the aggregate losses, claims, damages and liabilities
(including legal
- 25 -
or other expenses reasonably incurred in connection with investigating or
defending same) to which the Corporation 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 Corporation 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 7, 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 Corporation within the meaning of either the Act or the
Exchange Act, each officer of the Corporation who shall have signed the
Registration Statement and each director of the Corporation shall have the same
rights to contribution as the Corporation, subject in each case to clauses (y)
and (z) 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).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities 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 Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite
- 26 -
the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities 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 Securities, and if
such non defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non defaulting Underwriter or
the Corporation. In the event of a default by any Underwriter as set forth in
this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the 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 Corporation and any non defaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Corporation prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Corporation's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or 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, New York State
or Pennsylvania authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Corporation or its respective 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
- 27 -
any Underwriter or the Corporation or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or transmitted by any standard form of telecommunication, at the
address specified in Schedule I hereto; or, if sent to the Corporation, will be
mailed, delivered or transmitted by any standard form of telecommunication to
it at One PNC Plaza, 249 Fifth Avenue, Pittsburgh, Pennsylvania 15222,
attention of the Senior Vice President and Chief Financial Officer of the
Corporation.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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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 Corporation and the several Underwriters.
Very truly yours,
PNC Bank Corp.
By: ___________________________
Name:
Title:
Confirmed and accepted,
intending to be legally
bound, as of the date specified
in Schedule I hereto.
By:
By: __________________________
Name:
Title:
For itself and the other
several Underwriters, if
any, named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Designation, Purchase Price and Description of Preferred Stock:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued dividends, if any):
Over-allotment option for Preferred Stock:
Depositary Receipt Arrangements:
Name of Depositary:
Date of Deposit Agreement:
Fraction of a Security equal to one Depositary Share:
Number of Shares of Common Stock:
Purchase price per share of Common Stock:
Over-allotment option for Common Stock:
Closing Date, Time and Location:
Type of Offering:
Delayed Delivery Arrangements:
Fee:
Minimum number of shares of Securities of each contract:
Maximum aggregate number of shares of Securities of all contracts:
Modification of items to be covered by the letter from Ernst & Young delivered
pursuant to Section 5(e):
Date pursuant to Section 4(f):
SCHEDULE II
Number of shares
of Preferred Stock To
Underwriters Be Purchased
- ------------ ------------
------------
Total ...................
============
Number of shares
of Common Stock To
Underwriters Be Purchased
- ------------ ------------
------------
Total ...................
============