EXECUTION COPY
EXHIBIT 1.1.2
CAPITAL ONE FINANCIAL CORPORATION
13,000,000 6.25% UPPER DECS(SM)
UNDERWRITING AGREEMENT
April 17, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
As Representatives of the several Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Capital One Financial Corporation, a corporation organized
under the laws of Delaware (the "Company"), proposes to sell to the several
underwriters named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 13,000,000 of its 6.25% Upper
DECS. The Upper DECS will initially consist of 13,000,000 units (the
"Underwritten Securities") with a stated amount, per Upper DECS, of $50 (the
"Stated Amount"). Each Upper DECS will initially consist of (a) a forward stock
purchase contract (a "Purchase Contract") under which the holder will agree to
purchase from the Company on May 17, 2005 (the "Purchase Contract Settlement
Date"), for an amount of cash equal to the Stated Amount, shares of common
stock, $.01 par value ("Common Stock"), of the Company equal to the Settlement
Rate (as defined in the Purchase Contract Agreement referred to below) and (b)
$50 principal amount of the Company's 6.25% senior notes due May 17, 2007 (the
"Notes") issued pursuant to the Indenture (as defined below).
The Company also proposes to grant to the Underwriters an
option to purchase up to an additional 1,950,000 of its Upper DECS to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities"). The
Notes that will initially constitute a component of the Upper DECS are
hereinafter sometimes referred to as the "Underlying Notes". In accordance with
the terms of the Purchase Contract Agreement, to be dated as of April 23, 2002
(the "Purchase Contract Agreement"), between the Company and BNY Midwest Trust
Company, as purchase contract
agent (the "Purchase Contract Agent"), the Underlying Notes will be pledged by
the Purchase Contract Agent, on behalf of the holders of the Upper DECS, to BNY
Midwest Trust Company, as collateral agent (the "Collateral Agent"), pursuant to
the Pledge Agreement, to be dated as of April 23, 2002 (the "Pledge Agreement"),
among the Company, the Purchase Contract Agent and the Collateral Agent, to
secure the holders' obligations to purchase Common Stock under the Purchase
Contracts. The shares of Common Stock issuable pursuant to the Purchase
Contracts are hereinafter called the "Shares."
The Notes are to be issued pursuant to an indenture dated as
of November 1, 1996 (the "Base Indenture"), between the Company and BNY Midwest
Trust Company, as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the
"Trustee"), as amended and supplemented by a supplemental indenture to be dated
as of April 23, 2002 (the "Supplemental Indenture") between the Company and the
Trustee (the Base Indenture, as supplemented and amended by the Supplemental
Indenture, being referred to as the "Indenture"). The Securities and the
Indenture are more fully described in the Final Prospectus referred to below.
Pursuant to a Remarketing Agreement (the "Remarketing
Agreement") to be dated as of April 23, 2002, among the Company, the Purchase
Contract Agent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as remarketing agent (the
"Remarketing Agent"), the Notes may be remarketed, subject to certain terms and
conditions.
As used in this Agreement, the term "Operative Documents"
means the Purchase Contract Agreement (including the Purchase Contracts), the
Pledge Agreement, the Remarketing Agreement, the Notes, the Indenture and the
Upper DECS.
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 Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of
such 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
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference. Certain terms
used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1:
(a) The Company has prepared and filed with the Commission a
registration statement (File Nos. 333-82228 and 333-85227) on Form S-3,
including a related basic prospectus, for registration under the 1933
Act of certain securities, including the Securities, the Underlying
Notes and the Shares. The Registration Statement has become effective
and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended and the rules and regulations of the Commission
thereunder (collectively, the
"Trust Indenture Act"). The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will next file
with the Commission one of the following: (1) after the Effective Date
of such registration statement, a final prospectus supplement relating
to the Securities in accordance with Rules 430A and 424(b), (2) prior
to the Effective Date of such registration statement, an amendment to
such registration statement (including the form of final prospectus
supplement) or (3) a final prospectus in accordance with Rules 415 and
424(b). In the case of clause (1), the Company has 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 such registration statement and
the Final Prospectus. 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, 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 Company
has advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date and on the date of the filing by the
Company of any annual report on Form 10-K after the original filing of
the Registration Statement, 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 (as defined herein) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Final Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the 1933 Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, 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)) will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any settlement 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 required to be stated
therein or 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 Company makes no representations or
warranties as to 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 Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) Each Preliminary Final Prospectus and the Final
Prospectus, when filed pursuant to Rule 424 under the 1933 Act,
complied as so filed in all material respects with the 1933 Act and, if
applicable, each Preliminary Final Prospectus was, and the
Final Prospectus delivered to the Underwriters for use in connection
with the offering of the Securities will be, at the time of such
delivery.
(d) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, at the time they
were or hereafter are filed or last amended, as the case may be, with
the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act, and the rules and regulations of
Commission thereunder (the "Exchange Act Regulations"), and at the time
of filing or as of the time of any subsequent amendment, did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
or are made, not misleading; and any additional documents deemed to be
incorporated by reference in the Registration Statement or the Final
Prospectus will, if and when such documents are filed with the
Commission, or when amended, as appropriate, comply in all material
respects to the requirements of the Exchange Act and the Exchange Act
Regulations and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(e) The Company and each of Capital One Bank, Capital One
F.S.B. and Capital One Auto Finance, Inc. (individually a "Subsidiary"
and collectively the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation (or, in the case of Capital One Bank,
as a bank chartered under the laws of Virginia, and in the case of
Capital One F.S.B., as a federal savings bank chartered under the
federal laws of the United States) in good standing under the laws of
the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect (as defined below).
(f) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company (other than the directors'
qualifying shares of Capital One Bank) either directly or through
wholly owned Subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances; and no holder thereof is or will be subject to personal
liability by reason of being such a holder.
(g) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated Subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules forming a part of the Final
Prospectus, are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the applicable published
rules and regulations thereunder.
(h) The financial statements, together with related schedules
and notes, of the Company and its consolidated subsidiaries forming a
part of the Prospectus and the Registration Statement present fairly in
all material respects the financial condition, results of operations
and cash flows of the Company and its subsidiaries on the basis stated
in the Registration Statement, as of the dates and for the periods
indicated and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The selected
financial data set forth under the caption "Selected Consolidated
Financial Data" in the Final Prospectus and Registration Statement
fairly present, in all material respects, on the basis stated in the
Final Prospectus and the Registration Statement, the information
included therein.
(i) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, and
except as otherwise stated therein, (A) there has been no material
adverse change and no development with respect to the Company that
would have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business ("Material Adverse
Effect") (B) there have been no transactions entered into by the
Company or any of its Subsidiaries, other than those arising in the
ordinary course of business, that are material with respect to the
Company and its subsidiaries, considered as one enterprise, and (C)
except for regular dividends on the Common Stock in amounts per share
that are consistent with past practice or the applicable charter
document or supplement thereto, respectively, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(j) The Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; the outstanding shares of Common Stock have
been duly and validly authorized and issued and are fully paid and
nonassessable; and, except (i) as set forth in the Final Prospectus and
(ii) under the Company's 2002 Non-Executive Officer Stock Incentive
Plan, dated as of January 17, 2002, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Remarketing Agreement has been duly authorized by the
Company and when executed and delivered by the Company and assuming due
authorization, execution and delivery thereof by the other parties
thereto, will constitute the valid and binding obligation of the
Company enforceable in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity) and except as rights to indemnification, contribution
or exculpation thereunder may not be enforceable, and will conform in
all material respects to the description thereof in the Final
Prospectus.
(m) Each of the Purchase Contract Agreement, the Pledge
Agreement, the Notes and the Indenture has been duly authorized by the
Company and when executed and delivered by the Company and assuming due
authorization, execution and delivery thereof by the other parties
thereto, the Purchase Contract Agreement, the Pledge Agreement, the
Notes and the Indenture will constitute, the valid and binding
obligations of the Company enforceable in accordance with their
respective terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), and each will conform in all material
respects to the description thereof in the Final Prospectus. The Notes
will be entitled to the benefits of the Indenture.
(n) The Upper DECS have been duly authorized by the Company
and when executed and delivered by the Company to the Underwriters
against payment therefor as provided in this Agreement, authenticated
in accordance with the terms of the Purchase Contract Agreement and
executed by the Purchase Contract Agent as attorney-in-fact for the
holders thereof, will constitute the valid and binding obligations of
the Company enforceable against the Company in accordance with their
terms and entitled to the benefits of the Purchase Contract Agreement,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity), and the Upper DECS will conform in all material
respects to the description thereof in the Final Prospectus. The Upper
DECS and the Shares have been duly registered under the Exchange Act
and have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance; and the issuance of the Upper
DECS is not subject to preemptive or other similar rights.
(o) The Securities and the Indenture conform in all material
respects to the respective statements relating thereto contained in the
Final Prospectus.
(p) Neither the Company nor any of its Subsidiaries is (i) in
violation of any provision of its charter or bylaws, (ii) in default in
any material respect under the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument material to
the Company and its subsidiaries taken as a whole and to which it is a
party or bound or to which its property is subject, or (iii) in
violation of any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or such Subsidiary or any of its properties, as
applicable, except where such violation in (iii) would not have a
Material Adverse Effect.
(q) The execution, delivery and performance of this Agreement,
the Indenture and the other Operative Documents and the Securities and
the consummation of the transactions contemplated herein and therein
and in the Registration Statement (including the issuance and sale of
the Securities and the sale of the Shares pursuant to the Purchase
Contracts and the use of proceeds from the sale of the Securities as
described in the Final Prospectus under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder and
thereunder have been authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with, result in a breach or violation
of (i) the charter or by-laws of the Company or any of its
Subsidiaries, (ii) the terms of any material indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
material agreement, obligation, condition, covenant or instrument to
which the Company or any of its Subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company
or any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its Subsidiaries or any
of its or their properties.
(r) There are no material legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a party or
of which or its or their property is the subject and, to the best
knowledge of the Company, no such proceedings are threatened or
contemplated that (i) could reasonably be expected to have a Material
Adverse Effect on the ability of the Company to perform its obligations
under the Operative Documents or on the consummation of any of the
transactions contemplated hereby or thereby or (ii) could reasonably be
expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(s) 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 thereto, which is not
described or filed as required; and the statements in the Prospectus
under the headings "Description of the Upper DECS," "Description of the
Senior Notes," "Description of Debt Securities" and "Description of
Stock Purchase Contracts and Equity Units", insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings in all material respects.
(t) The Company and each of its Subsidiaries are in compliance
in all material respects with all laws administered by and regulations
of the Board of Governors of the Federal Reserve System, the Federal
Deposit Insurance Corporation, the Office of Thrift Supervision, the
Virginia State Corporation Commission and any other federal or state
bank regulatory authority with jurisdiction over the Company or any of
its Subsidiaries (the "Bank Regulatory Authorities"), other than where
such failures to comply would not have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries is a party to any
written agreement or memorandum of understanding with, or a party to
any commitment letter or similar undertaking to, or is subject to any
order or
directive by, or is a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of, any Bank
Regulatory Authority which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy (other than
as described in the Final Prospectus), its credit policies or its
management, nor have any of them been advised by any Bank Regulatory
Authority that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such
order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, or any
such board resolutions.
(u) The Company and each of its Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), as are necessary to own, lease and operate its
respective properties that are material to the Company and its
subsidiaries, taken as a whole, or to the conduct of the business of
the Company and its subsidiaries, taken as a whole; the Company and
each of its Subsidiaries has fulfilled and performed all of its
material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit; and, except
as described in the Final Prospectus, such permits contain no
restrictions that are materially burdensome to the Company and its
subsidiaries, taken as a whole.
(v) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or in
the other Operative Documents or for the due execution, delivery or
performance of the Operative Documents by the Company, except such as
have been obtained under the 1933 Act, the Exchange Act and the Trust
Indenture Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated herein
and in the Final Prospectus.
(w) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(x) Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
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, at the purchase price of $50 per
Security, the amount of Underwritten Securities set forth in Schedule I opposite
the name of such Underwriter.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally and
not jointly, of an aggregate of not more than 1,950,000 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 one time,
in whole or in part, provided that the settlement of the Option
Securities shall be no later than the 13th day after the date of
issuance of the Underwritten Securities. Said option shall be exercised
upon written or telegraphic notice by the Representatives to the
Company setting forth the number of shares of the Option Securities as
to which the several Underwriters are exercising the option and the
settlement date. 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 of 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 Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall
be agreed upon by the Representatives and the Company, at 10:00 a.m., New York
City time, on April 23, 2002, or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, 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 Securities being herein called the
"Closing Date"). Delivery of the 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 Company by wire transfer payable in same-day funds
to an account specified by the Company. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives, at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) 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 Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company 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 6 hereof.
Certificates for the Securities shall be in such denominations
and registered in such names as the Underwriter may request in writing at least
two full Business Days before the Closing Date. The certificates for Securities
will be made available in New York City for examination by the Underwriter no
later than 10:00 a.m., New York City time on the Business Day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement 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, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Company 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 Company will promptly advise the Representatives (1)
when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution of any proceeding for that purpose and (6) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution of any proceeding for such purpose. The Company will use
its reasonable best efforts to prevent the issuance of any such stop
order or the suspension of any such qualification 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 delivered under the 1933 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
1933 Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request. If applicable, the Final Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(c) During the period when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
the Company will give the Representatives notice of its intention to
file or prepare any amendment to the Registration Statement (including
any post-effective amendment and any filing under Rule 462(b) of the
1933 Act), or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Final Prospectus, whether pursuant to the 1933 Act,
the Exchange Act or otherwise; will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be; and will not file any such
documents to which the Representatives or counsel for the Underwriters
shall reasonably object.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed 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 each Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as each Underwriter may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the 1933 Act.
(f) The Company will cooperate with the Representatives and
counsel for the Underwriters, if necessary, in connection with 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 pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(g) The Company will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of Common
Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after
the date of this Agreement, provided, however, that the Company may (i)
issue and sell Common Stock pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time, (ii) issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time, (iii) issue commercial paper in the ordinary course of
business and (iv) file a universal shelf registration statement with
the Commission.
(h) If at any time during such period the Company ceases to
file reports with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, during the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end
of each fiscal year to the record holders of its Securities a financial
report of the Company and its subsidiaries on a consolidated basis (and
a similar financial report of all unconsolidated subsidiaries, if any),
all such financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of cash
flows and a consolidated statement of changes in stockholders' equity
as of the end of and for such fiscal year, together with comparable
information as of the end of and for the preceding year, certified by
independent certified public accountants, and (ii) to mail and make
generally available as soon as practicable after the end of each
quarterly period (except for the last quarterly period of each fiscal
year) to such holders, a consolidated balance sheet, a consolidated
statement of operations and a consolidated statement of cash flows (and
similar financial reports of all unconsolidated Subsidiaries, if any)
as of the end of and for such period, and for the period from the
beginning of such year to the close of such quarterly period, together
with comparable information for the corresponding periods of the
preceding year.
(i) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and, if applicable, the settlement date
pursuant to Section 3 hereof, 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) 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) 9:30 a.m. 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, will be 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 have been issued and no proceedings for that purpose shall have
been instituted or, to the best knowledge of the Company, threatened.
(b) The Company shall have requested and caused Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Company, to have
furnished to the Representatives its opinion and its letter, each dated
the Closing Date and addressed to the Representatives, in form and
substance satisfactory to the Representatives and counsel for the
Underwriters and substantially in the forms as set forth in Exhibit A
attached hereto.
(c) The Company shall have requested and caused ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President, General Counsel and
Corporate Secretary for the Company, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to
the Representatives, in form and substance satisfactory to the
Representatives and counsel for the Underwriters and substantially in
the form as set forth in Exhibit B attached hereto.
(d) The Company shall have requested and caused ▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇, LLP, counsel for BNY Midwest Trust Company, in its capacities
as Purchase Contract Agent and as Collateral Agent, to have furnished
to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, in form and substance satisfactory to
the Representatives and counsel for the Underwriters and substantially
in the form as set forth in Exhibit C attached hereto.
(e) The Representatives shall have received from ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) 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.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Executive Vice President and
Chief Financial Officer and the Vice President and Chief Financial
Officer, Treasurer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have examined the
Registration
Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct 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 has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in
the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change,
or any development involving a prospective material
adverse change in the condition (financial or
otherwise), prospects, earnings, business or
properties of the Company 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).
(g) The Company shall have requested and caused Ernst & Young
LLP to have furnished to the Representatives a letter, at the Execution
Time and dated such date and substantially in the form of Exhibit C
attached hereto.
(h) At the Closing Date, the Representatives shall have
received a letter from Ernst & Young LLP, dated as of the Closing Date,
to the effect that it reaffirms the statements made in the letter
furnished pursuant to subsection (h) of this Section, except that the
specified date referred to shall be a date not more than five days
prior to the Closing Date.
(i) 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 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company 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), the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(j) At the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(k) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇) or any notice
given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(l) At the Closing Date, the Securities shall have been
approved for listing on the New York Stock Exchange, subject to
official notice of issuance, and satisfactory evidence of such actions
shall have been provided to the Representatives.
(m) 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.
If any of the conditions specified in this Section 6 shall
have not been fulfilled 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 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
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
the Underwriters, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on
the Closing Date.
7. 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 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof 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 through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on 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 Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the 1933 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 1933 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 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 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 inclusion therein;
provided further, that with respect to any untrue statement or omission of
material fact made in any Preliminary Final Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such loss, claim, damage or liability
purchased the securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished copies of
the Final Prospectus to the Representatives, (x) delivery of the Final
Prospectus was required by the Act to be made to such person, (y) the untrue
statement or omission of a material fact contained in the Preliminary Final
Prospectus was corrected in the Final Prospectus and (z) there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such securities to such person, a copy of the Final Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally and not jointly 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 1933 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 inclusion in 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 last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting", (i)
the list of Underwriters and their respective participation in the sale
of the Securities, (ii) the sentences related to concessions and
reallowances, (iii) the paragraphs related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Final
Prospectus and the Final
Prospectus, (iv) the second sentence of the eighth paragraph under the
heading "Underwriting" in any Preliminary Final Prospectus and the
Final Prospectus relating to market making and (v) the references to
service ▇▇▇▇ on the front and back covers in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Final Prospectus or the Final Prospectus.
(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 failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, 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, (iii)
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 the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the
Securities; provided, however, that 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 or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page
of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company
on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the 1933 Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the 1933 Act or the 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 the applicable terms and
conditions of this paragraph (d).
9. 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 I hereto bears to the aggregate amount of
Securities set forth opposite 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 I 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 nondefaulting Underwriters do not purchase all the Securities, 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
five Business 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 Securities, if at any time prior to such time
(i) trading in the Company'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 or New York State 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 sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto).
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, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof 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 telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
Capital One Financial Corporation at (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Executive Vice President, General Counsel and Corporate Secretary and (ii) ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention:
Director of Capital Markets.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents 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 laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"1933 Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b) after
the Execution Time, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including 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 or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
1933 Act.
"Rule 430A Information" shall mean 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.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
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,
CAPITAL ONE FINANCIAL
CORPORATION
By: /s/ SIGNATURE
----------------------------------
Name:
Title
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Credit Suisse First Boston Corporation
Banc of America Securities LLC
▇▇▇▇▇▇ Brothers Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
----------------------------------
Name:
Title
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
13,000,000 UPPER DECS
Name of Underwriter Principal Amount
------------------- ----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc................................................ 4,940,000
Credit Suisse First Boston Corporation.................................. 4,940,000
Banc of America Securities LLC.......................................... 1,040,000
▇▇▇▇▇▇ Brothers Inc..................................................... 1,040,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.............................................. 1,040,000
----------
TOTAL............................................................... 13,000,000
==========
EXHIBIT A
OPINIONS TO BE RENDERED BY CLEARY, GOTTLIEB, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
We have acted as special counsel to
Capital One Financial Corporation, a
Delaware corporation (the "Company"), in connection with the offering by the
Company, pursuant to a registration statement on Form S-3 (Nos. 333-82228 and
333-85227), of 13,000,000 of its 6.25% Upper DECS(SM) ($50 stated amount per
Upper DECS) (the "Securities"). Each Upper DECS consists of (a) a forward
purchase contract to purchase, for $50, shares of common stock of the Company
(the "Forward Purchase Contracts") and (b) a senior note with a principal amount
of $50 (the "Senior Notes"). The Forward Purchase Contracts are to be issued
under a forward purchase contract agreement between the Company and BNY Midwest
Trust Company (the "Forward Purchase Contract Agent"), as forward purchase
contract agent, dated as of April 23, 2002 (the "Forward Purchase Contract
Agreement"), and the Senior Notes are to be issued under a senior indenture
dated as of November 1, 1996 (the "Senior Indenture"), as supplemented by the
First Supplemental Indenture, dated as of April 23, 2002 (together with the
Senior Indenture, the "Indenture"), between the Company and BNY Midwest Trust
Company (as successor to ▇▇▇▇▇▇ Trust and Savings Bank), as trustee (the
"Trustee"). The registration statement, as amended when it became effective, but
excluding the documents incorporated by reference therein, is herein called the
"Registration Statement," and the related prospectus, as supplemented by the
final prospectus supplement dated April 17, 2002, and as first filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(5)
under the Securities Act of 1933, as amended (the "Securities Act"), but
excluding the documents incorporated by reference therein, is herein called the
"Prospectus." This opinion letter is furnished pursuant to Section 6(b) of the
underwriting agreement dated April 17, 2002 (the "
Underwriting Agreement") among
the Company and the several underwriters named in Schedule I thereto (the
"Underwriters"). Capitalized terms used and not defined herein shall have the
meanings given to them in the
Underwriting Agreement.
In arriving at the opinions expressed below, we have reviewed the
following documents:
(a) an executed copy of the
Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by
reference therein;
(c) the Prospectus and the documents incorporated by reference
therein;
(d) a specimen of the Securities and a specimen of the Senior Notes;
(e) an executed copy of the Indenture;
(f) an executed copy of the Forward Purchase Contract Agreement;
(g) an executed copy of the pledge agreement dated as of April 23,
2002 (the
24
"Pledge Agreement") among the Company, BNY Midwest Trust
Company, as collateral agent, custodial agent and securities
intermediary, and the Forward Purchase Contract Agent;
(h) an executed copy of the remarketing agreement dated as of April
23, 2002 (the "Remarketing Agreement") among the Company,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as remarketing agent, and the Forward
Purchase Contract Agent; and
(i) the documents delivered to you by the Company at the closing
pursuant to the
Underwriting Agreement.
In addition, we have reviewed the originals or copies certified or otherwise
identified to our satisfaction of all such records of the Company and such other
instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below.
As used herein, the Senior Notes, the Indenture, the Forward Purchase
Contract Agreement, the Pledge Agreement and the Remarketing Agreement are
referred to collectively as the "Transaction Documents."
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and not verified (i) the accuracy as to factual matters of each document
we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the
Underwriting Agreement) and
(ii) that the Securities and the Senior Notes each conform to the specimen
thereof that we have reviewed and will be duly authenticated in accordance with
the terms of the Forward Purchase Contract Agreement and the Indenture,
respectively.
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
1. The Remarketing Agreement is a valid and binding agreement of the
Company, enforceable in accordance with its terms (except that we express no
opinion with respect to Section [___] of the Remarketing Agreement providing for
indemnification and contribution).
2. The Forward Purchase Contract Agreement is a valid and binding
agreement of the Company, enforceable in accordance with its terms.
3. The Pledge Agreement is a valid and binding agreement of the Company,
enforceable in accordance with its terms.
4. The Indenture is a valid and binding agreement of the Company,
enforceable
25
in accordance with its terms.
5. The Securities are valid, binding and enforceable obligations of the
Company, entitled to the benefits of the Forward Purchase Contract Agreement.
6. The Senior Notes are valid, binding and enforceable obligations of
the Company, entitled to the benefits of the Indenture.
7. The statements set forth in the Prospectus under the headings
"Description of the Upper DECS," "Description of the Senior Notes," "Description
of Debt Securities" and "Description of Stock Purchase Contracts and Equity
Units," insofar as such statements purport to summarize certain provisions of
the Securities and the Transaction Documents, provide a fair summary of such
provisions.
8. The statements set forth in the Prospectus under the heading "United
States Federal Income Tax," insofar as such statements purport to summarize
certain federal income tax laws of the United States, constitute a fair summary
of the principal U.S. federal income tax consequences of an investment in the
Securities.
Insofar as the foregoing opinions relate to the validity, binding effect
or enforceability of any agreement or obligation of, or the creation or transfer
of any interest in property of, the Company, (a) we have assumed that the
Company and each other party to such agreement or obligation has satisfied those
legal requirements that are applicable to it to the extent necessary to make
such agreement or obligation enforceable against it (except that no such
assumption is made as to the Company regarding matters of the federal law of the
United States of America or the law of the State of New York) and (b) such
opinions are subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general principles of equity. In
addition, certain of the remedial provisions of the Pledge Agreement may be
further limited or rendered unenforceable by other applicable laws or judicially
adopted principles which, however, in our judgment do not make the remedies
provided for therein (taken as a whole) inadequate for the practical realization
of the principal benefits purported to be afforded thereby (except for the
economic consequences of procedural or other delay).
The foregoing opinions are limited to the federal law of the United
States of America and the law of the State of New York. We note that the
designation in Section 10.2 of the Pledge Agreement of the United States federal
courts sitting in New York City as the venue of actions or proceedings relating
to the Pledge Agreement is (notwithstanding the waiver in Section 10.2) subject
to the power of such courts to transfer actions pursuant to 28 U.S.C. Section
1404(a) or to dismiss such actions or proceedings on the grounds that such a
federal court is an inconvenient forum for such an action or proceeding. With
respect to the third sentence of Section 10.2 of the Pledge Agreement, we
express no opinion as to the subject matter jurisdiction of any United States
federal court to adjudicate any action relating to the Pledge Agreement where
jurisdiction based on diversity of citizenship under 28 U.S.C. Section 1332 does
not exist.
We are furnishing this opinion letter to you, as Representatives of the
26
Underwriters, solely for the benefit of the Underwriters in connection with the
offering of the Securities. This opinion letter is not to be used, circulated,
quoted or otherwise referred to for any other purpose.
27
We have acted as special counsel to
Capital One Financial Corporation, a
Delaware corporation (the "Company"), in connection with the offering by the
Company, pursuant to a registration statement on Form S-3 (Nos. 333-82228 and
333-85227), of 13,000,000 of its 6.25% Upper DECS(SM) ($50 stated amount per
Upper DECS) (the "Underwritten Securities") and, if the Representatives of the
Underwriters (as defined below) exercise their over-allotment option, up to an
additional 1,950,000 Upper DECS ($50 stated amount per Upper DECS) (together
with the Underwritten Securities, the "Securities"). Each Upper DECS consists of
(a) a forward purchase contract to purchase, for $50, shares of common stock of
the Company (the "Forward Purchase Contracts") and (b) a senior note with a
principal amount of $50 (the "Senior Notes"). The Forward Purchase Contracts are
to be issued under a forward purchase contract agreement between the Company and
BNY Midwest Trust Company, as forward purchase contract agent, dated as of April
23, 2002, and the Senior Notes are to be issued under a senior indenture dated
as of November 1, 1996, as supplemented by the First Supplemental Indenture,
dated as of April 23, 2002, between the Company and BNY Midwest Trust Company
(as successor to ▇▇▇▇▇▇ Trust and Savings Bank), as trustee. The registration
statement, as amended when it became effective (except Exhibits 25.1 and 25.2),
but excluding the documents incorporated by reference therein, is herein called
the "Registration Statement," and the related prospectus, as supplemented by the
final prospectus supplement dated April 17, 2002, and as first filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(5)
under the Securities Act of 1933, as amended (the "Securities Act"), but
excluding the documents incorporated by reference therein, is herein called the
"Prospectus." This letter is furnished pursuant to Section 6(b) of the
underwriting agreement dated April 17, 2002 (the "
Underwriting Agreement") among
the Company and the several underwriters named in Schedule I thereto (the
"Underwriters"). Capitalized terms used and not defined herein shall have the
meanings given to them in the
Underwriting Agreement.
Because the primary purpose of our professional engagement was not to
establish or confirm factual matters or financial, accounting or statistical
information, and because many determinations involved in the preparation of the
Registration Statement and the Prospectus and the documents incorporated by
reference therein are of a wholly or partially non-legal character or relate to
legal matters outside the scope of our opinion letter to you of even date
herewith, we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or the documents incorporated by
reference therein (except to the extent expressly set forth in numbered
paragraphs 7 and 8 of our opinion letter to you of even date herewith) and we
make no representation that we have independently verified the accuracy,
completeness or fairness of such statements (except as aforesaid).
However, in the course of our acting as special counsel to the Company
in connection with their preparation of the Registration Statement and the
Prospectus, we participated in conferences and telephone conversations with
representatives of the Company, representatives of the independent public
accountants for the Company, your representatives and representatives of your
counsel, during which conferences and conversations the contents of the
Registration Statement and the Prospectus, portions of certain of the documents
incorporated by reference therein and related matters were discussed, and we
reviewed certain corporate records
28
and documents furnished to us by the Company.
Based on our participation in such conferences and conversations and our
review of such records and documents as described above, our understanding of
the U.S. federal securities laws and the experience we have gained in our
practice thereunder, we advise you that:
(a) No information has come to our attention that causes us to
believe that the Registration Statement, including the documents incorporated by
reference therein (except the financial statements and schedules and other
financial and statistical data included therein, as to which we express no
view), at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(b) No information has come to our attention that causes us to
believe that the Prospectus, including the documents incorporated by reference
therein (except the financial statements and schedules and other financial and
statistical data included therein, as to which we express no view), as of the
date thereof or hereof, contained or contains an untrue statement of a material
fact or omitted or omits 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.
We are furnishing this letter to you, as Representatives of the
Underwriters, solely for the benefit of the Underwriters in connection with the
offering of the Securities. This letter is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
29
EXHIBIT B
OPINION OF ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
I am the General Counsel of
Capital One Financial Corporation, a
Delaware corporation (the "Company"), and, together with attorneys under my
supervision, have acted as counsel to the Company in connection with the sale by
the Company to the several underwriters named in Schedule I hereto (the
"Underwriters"), pursuant to the Underwriting Agreement, dated as of April 17,
2002, among the Company and each of you, as Underwriters (the "Underwriting
Agreement"), pursuant to registration statement on Form S-3 (File Number
333-82228 and 333-85227), of (i) 13,000,000 of the Company's 6.25% Upper DECS
(the "Upper DECS"), stated value $50 per Upper DECS, and (ii) the grant by the
Company to the Underwriters of the option described in Section 2(b) of the
Underwriting Agreement to purchase up to 1,950,000 additional Upper DECS to
cover over-allotments, if any (collectively, the "Securities"). Each Upper DECS
consists of (a) a forward stock purchase contract with respect to shares of the
Company's common stock, par value $.01 per share (the "Common Shares"), and (b)
a 6.25% senior note of the Company (the "Senior Notes") to be issued pursuant to
the Indenture, dated as of November 1, 1996, between the Company and BNY Midwest
Trust Company, as successor to ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the
"Trustee") (as such indenture is supplemented by the First Supplemental
Indenture, dated as of April 23, 2002, between the Company and the Trustee, the
"Indenture"). The registration statement referred to hereinabove, as amended
when it became effective, is herein called the "Registration Statement," and the
related prospectus dated March 21, 2002, as supplemented by the final prospectus
supplement dated April 17, 2002, and including the documents incorporated by
reference therein, as first filed with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 424(b)(5) under the Securities Act of 1933,
as amended (the "Securities Act"), is herein called the "Prospectus." This
opinion letter is furnished at the request of the Company pursuant to Section
6(c) of the Underwriting Agreement. Capitalized terms used herein that are not
defined herein shall have the meanings ascribed thereto in the Underwriting
Agreement, unless the context indicates otherwise.
In arriving at the opinions expressed below, we have examined and relied
on the following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by
reference therein;
(c) the Prospectus and the documents incorporated by reference therein;
(d) a specimen of the Securities;
(e) a specimen of the Senior Notes;
B-2
(f) an executed copy of the Indenture;
(g) an executed copy of the Forward Purchase Contract Agreement (the
"Forward Purchase Contract Agreement"), dated as of April 23, 2002,
among the Company and BNY Midwest Trust Company, as forward purchase
contract agent (the "Forward Purchase Contract Agent");
(h) an executed copy of the Pledge Agreement, dated as of April 23,
2002, among the Company, BNY Midwest Trust Company, as collateral
agent, custodial agent and securities intermediary, and the Forward
Purchase Contract Agent;
(i) an executed copy of the Remarketing Agreement, dated as of April 23,
2002, among the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as remarketing
agent, and the Forward Purchase Contract Agent; and
(j) the documents delivered to you by the Company at the closing
pursuant to the Underwriting Agreement, including copies of the
Company's Restated Certificate of Incorporation and By-Laws,
certified by the Secretary of State of the State of Delaware and the
corporate secretary of the Company, respectively.
Items (f) through (i) above are collectively referred to herein as the
"Operative Documents".
In addition, we have reviewed the originals or copies certified or
otherwise identified to my satisfaction of all such corporate records of the
Company and such other instruments and other certificates of public officials,
officers and representatives of the Company and such other persons, and we have
made such investigations of law, as we have deemed appropriate as a basis for
the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the representations
and warranties of the Company in the Underwriting Agreement).
Based on the foregoing, and subject to the further assumptions
and qualifications set forth below, it is our opinion that:
1. The Company and each of its Subsidiaries (as defined in
the Underwriting Agreement) has been duly incorporated and is validly existing
as a corporation (or, in the case of Capital One Bank, as a bank chartered under
the laws of Virginia, and in the case of Capital One F.S.B., as a federal
savings bank chartered under the federal laws of the United States) in good
standing under the laws of the jurisdiction in which it is chartered or
organized with full corporate power and authority to (1) carry on its business
as it is currently being conducted and to own or lease, as the case may be,
operate its business as described in the Final Prospectus, and
B-2
(2) enter into this Agreement and the other Operative Documents and to perform
its obligations under, or as contemplated by, each thereof, and is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect.
2. The Indenture complies as to form in all respects with
the requirements of the Trust Indenture Act.
3. All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's Subsidiaries have been duly
and validly authorized and issued and are fully paid and non-assessable and,
except as otherwise set forth in the Final Prospectus, all outstanding shares of
capital stock of the Subsidiaries are owned of record and, to the best of our
knowledge, beneficially by the Company (other than directors' qualifying shares
of Capital One Bank), free and clear, to the best of our knowledge, after due
inquiry, of any security interest, claim, lien, encumbrance or other adverse
interest of any nature. The certificates for the Common Shares comply with all
applicable requirements of the General Corporation Law of the State of Delaware.
4. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
5. Each of the Operative Documents has been duly
authorized, executed and delivered by the Company, and is a valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
limited by (a) bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) equitable principles of general applicability. Each
Operative Document conforms in all material respects with the description
thereof contained in the Prospectus.
6. The Securities and the Notes have been duly authorized
and executed by the Company for issuance. The issuance of the Securities is not
subject to preemptive or other similar rights.
7. The shares of Common Stock issuable pursuant to the
Forward Purchase Contract Agreement have been duly authorized and reserved for
issuance by the Company and, when issued and delivered in accordance with the
provisions of the Purchase Contract Agreement, will be validly issued and fully
paid and non-assessable; and the issuance of such Shares is not and will not be
subject to preemptive or other similar rights.
8. The Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus; the
outstanding shares of the Company's common stock have been duly and validly
authorized and issued and are fully paid and nonassessable.
9. To our knowledge, there are no material legal or
governmental proceedings pending to which the Company or any of its Subsidiaries
is a party or of which its or
B-2
their property is subject and, to the best of our knowledge, no such proceedings
are threatened or contemplated that (i) could reasonably be expected to have a
Material Adverse Effect on the ability of the Company to perform its obligations
under the Operative Documents or on the consummation of any of the transactions
contemplated hereby or thereby or (ii) could reasonably be expected to have a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectus; there is no contract or other document of a character required to be
described in the Registration Statement or the Prospectus which is not so
described, or any contract or other document which is required to be described
in the Registration Statement or the Prospectus or is required to be filed as an
exhibit to the Registration Statement which is not so described or filed as
required;
10. No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in connection with
the execution, delivery and performance by the Company of this Agreement, the
Indenture, the other Operative Documents or the Securities, except such as have
been obtained under the 1933 Act, the Exchange Act and the Trust Indenture Act,
and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in the Underwriting Agreement and in the
Prospectus.
11. Neither the execution, delivery and performance of the
Underwriting Agreement and Operative Documents, nor the issuance and sale of the
Securities or the Notes, nor the consummation of any other of the transactions
contemplated herein or in any of the Operative Documents nor the fulfillment of
the terms hereof or thereof, will conflict with or constitute a breach of any of
the terms or provisions of, or a default under, (i) the charter or by-laws of
the Company or any of its Subsidiaries, (ii) the terms of any material
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other material agreement, obligation, condition, covenant or
instrument to which the Company or any of its Subsidiaries is a party or or to
which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or its
Subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or its
Subsidiaries or any of its or their properties.
12. To the best of our knowledge, the Company and each of
its Subsidiaries are in compliance in all material respects with all laws
administered by applicable Bank Regulatory Authorities, other than where such
failures to comply would not have a Material Adverse Effect, and neither the
Company nor any of its Subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a recipient of
any extraordinary supervisory letter from, or has adopted any board resolutions
at the request of, any Bank Regulatory Authority which restricts materially the
conduct of its business, or in any manner relates to its capital adequacy (other
than as described in the Prospectus), its credit policies or its management, nor
have any of them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or similar
submission, or any such board resolutions.
B-2
13. The Company and each of its Subsidiaries has such
permits as are necessary to own, lease and operate its respective properties
that are material to the Company and its Subsidiaries, taken as a whole, or to
the conduct of the business in the manner described in the Prospectus; to the
best of our knowledge, the Company and each of its Subsidiaries has fulfilled
and performed all of its material obligations with respect to such permits and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit, subject in each case
to such qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, such permits contain no restrictions that are
materially burdensome to the Company and its subsidiaries, taken as a whole.
14. The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectus, will not be an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
15. No holders of securities of the Company have rights to
the registration of such securities under the Registration Statement.
16. The Registration Statement has become effective under
the 1933 Act; any required filing of the preliminary and 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); and to our knowledge no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or threatened.
17. (a) the Registration Statement and the Prospectus and
any supplement or amendment thereto (except for financial statements and other
financial and statistical information contained therein as to which no opinion
is expressed) comply as to form in all material respects with the Securities Act
and the Exchange Act and the respective rules thereunder, and (b) we have no
reason to believe that (except for the financial statements and other financial
and statistical information contained therein, as aforesaid, and except for that
part of the Registration Statement that constitutes the Statement of Eligibility
on Form T-1 of the Trustee) the Registration Statement and the prospectus
included therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as amended or supplemented (except for
financial statements and other financial and statistical information contained
therein, as aforesaid) contained any untrue statement of a material fact or
omitted 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.
With respect to the matters expressed in numbered paragraph 17 of
this letter, because many determinations involved in the preparation of the
Registration Statement and the Prospectus and the documents incorporated by
reference therein are of a wholly or partially non-legal character or relate to
legal matters outside the scope of the opinions set forth in paragraphs 1
through 16 of this letter, we are not passing upon and do not assume any
B-2
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus or the documents
incorporated by reference therein, and we make no representation that we have
independently verified the accuracy, completeness or fairness of such statements
(except as aforesaid).
Insofar as the foregoing opinions relate to the legality,
validity, binding effect or enforceability of any agreement or obligations of
the Company, we have assumed that each other party to such agreement or
obligation has satisfied those legal requirements that are applicable to the
extent necessary to make such agreement or obligation enforceable against it.
In giving the foregoing opinions, we express no opinion as to the
laws of any jurisdiction other than the federal law of the United States of
America, the General Corporation Law of the State of Delaware, the law of the
State of New York and the law of the Commonwealth of Virginia.
We are furnishing this opinion to you solely for your benefit.
This opinion is not to be used, circulated, quoted or otherwise referred to for
any other purpose.
B-2
EXHIBIT C
OPINION OF ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
(i) BNY Midwest Trust Company is a trust company duly formed and
validly existing under the laws of the State of Illinois, with
all necessary power and authority to execute, deliver and
perform its obligations under the Purchase Contract Agreement
and the Pledge Agreement.
(i) The execution, delivery and performance by BNY Midwest Trust
Company of each of the Purchase Contract Agreement and the
Pledge Agreement, and the authentication and delivery of the
Securities have been duly authorized by all necessary corporate
action on the part of BNY Midwest Company. Each of the Purchase
Contract Agreement and the Pledge Agreement has been duly
executed and delivered by BNY Midwest Company, and constitutes
the legal, valid and binding agreement of BNY Midwest Company,
enforceable against BNY Midwest Company, in accordance with its
terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to the enforcement of creditors' rights
generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(ii) The execution, delivery and performance of the Purchase Contract
Agreement and the Pledge Agreement by BNY Midwest Company, do
not conflict with or constitute a breach of its charter or
by-laws.
(iii) No consent, approval or authorization of, or registration with
or notice to, any New York or federal governmental authority or
agency is required for the execution, delivery or performance by
BNY Midwest Company of the Purchase Contract Agreement or the
Pledge Agreement.
(iv) Based solely upon an examination of the certificate of
authentication on the Upper DECS Certificate evidencing the
Upper DECS issued on the date hereof, such Upper DECS
Certificate has been duly authenticated by BNY Midwest, in its
capacity as Purchase Contract Agent, pursuant to the Purchase
Contract Agreement.
C-2
