Pricing Agreement among The Bank of New York Company, Inc., BNY Capital V, and Underwriters (Merrill Lynch, Morgan Stanley, et al.) dated April 22, 2003

Summary

This agreement is between The Bank of New York Company, Inc., BNY Capital V (a Delaware statutory trust), and a group of underwriters led by Merrill Lynch and Morgan Stanley. It sets the terms for the underwriters to purchase and resell preferred securities issued by BNY Capital V. The agreement incorporates standard underwriting provisions, specifies purchase amounts for each underwriter, and outlines conditions for the sale, including legal opinions and market conditions. The agreement becomes binding upon acceptance by the underwriters' representatives.

EX-1.1 3 dex11.txt PRICING AGREEMENT DATED 04/22/03 Exhibit 1.1 Pricing Agreement April 22, 2003 Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center North Tower, 15th Floor New York, New York 10080 Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 As Representatives of the several Underwriters named in Schedule I hereto (the "Underwriters") Ladies and Gentlemen: The Bank of New York Company, Inc., a New York corporation (the "Company"), and a statutory trust formed under the laws of the State of Delaware specified in Schedule II hereto (the "Designated Trust") propose, subject to the terms and conditions stated herein and in the Underwriting Agreement Standard Provisions (August 2002) (the "Standard Provisions"), to issue and sell to the Underwriters the preferred securities of the Designated Trust (the "Designated Securities"). Except as set forth in the next paragraph, each of the provisions of the Standard Provisions is incorporated herein by reference in its entirety and shall be deemed to be a part of this Pricing Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Standard Provisions so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Standard Provisions are used herein as therein defined. The Representatives designated to act on behalf of themselves and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Standard Provisions and the address of the Representatives referred to in such Section 12 are set forth in Schedule II hereto. For purposes of this Pricing Agreement, (i) Section 7(j) of the Standard Provisions is amended and restated as follows: "On or after the date of the Pricing Agreement relating to the Designated Securities, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; or (iii) an outbreak or escalation of hostilities or the declaration by the 5 United States of a national emergency or war or other calamity or crisis or change in financial, political or economic conditions in the United States or elsewhere having an adverse effect on the financial markets of the United States, if the effect of any such event specified in this clause (iii) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus as amended or supplemented relating to the Designated Securities," (ii) the first paragraph of Section 7(c) of the Standard Provisions is amended and restated as follows: "Paul Immerman, Senior Counsel of The Bank of New York, or other counsel designated by the Company reasonably acceptable to the Representatives and specified in the applicable Pricing Agreement, shall have furnished to the Representatives such written opinion or opinions to the effect of paragraphs (1) through (6), inclusive, below, and, if the Designated Securities are Preferred Securities, Sullivan & Cromwell LLP, special counsel to the Company, or other counsel designated by the Company reasonably acceptable to the Representatives and specified in the applicable Pricing Agreement, shall have furnished to the Representatives such written opinion or opinions to the effect of paragraphs (2) through (4) below, and paragraphs 6(i), 6(ii), 6(iii) and 6(vi) below, in each case, dated each Time of Delivery for such Designated Securities, and in each case in form and substance satisfactory to the Representatives:", and (iii) all references to "Sullivan & Cromwell" in the Standard Provisions shall be changed to "Sullivan & Cromwell LLP." A supplement to the Prospectus relating to the Designated Securities, in the form heretofore delivered to you, is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Standard Provisions incorporated herein by reference, the Designated Trust agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Designated Trust, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the number of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. The Company agrees to pay the underwriting compensation set forth in Schedule II hereto to you, for the accounts of the several Underwriters, at the time and place set forth in such Schedule II. 6 If the foregoing is in accordance with your understanding, please sign and return to us five counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Standard Provisions incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company and the Designated Trust. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of agreement among underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. Very truly yours, The Bank of New York Company, Inc. By: /s/ Bruce Van Saun ------------------------------------------ Name: Bruce Van Saun Title: Senior Executive Vice President and Chief Financial Officer BNY Capital V By: The Bank of New York Company, Inc., as Depositor By: /s/ Bruce Van Saun ------------------------------------------ Name: Bruce Van Saun Title: Senior Executive Vice President and Chief Financial Officer 7 Accepted as of the date hereof: Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. Incorporated As Representatives of the Underwriters named in Schedule I hereto Merrill Lynch, Pierce, Fenner & Smith Incorporated By: /s/ Sabina Ceddia --------------------------------------- Name: Sabina Ceddia Title: Duly Authorized Attorney 8 SCHEDULE I (TO PRICING AGREEMENT) Number of Designated Securities to be Underwriter Purchased - ------------------------------------------------------------------- ---------- Merrill Lynch, Pierce, Fenner & Smith Incorporated.................................................... 2,169,650 Morgan Stanley & Co. Incorporated.................................. 2,169,650 Citigroup Global Markets Inc....................................... 2,169,650 UBS Warburg LLC.................................................... 2,169,650 Banc of America Securities LLC..................................... 583,800 BNY Capital Markets, Inc........................................... 583,800 Lehman Brothers Inc................................................ 583,800 ABN AMRO Incorporated.............................................. 140,000 BNP Paribas Securities Corp........................................ 140,000 Bear, Stearns & Co. Inc............................................ 140,000 CIBC World Markets Corp............................................ 140,000 Credit Suisse First Boston LLC..................................... 140,000 A.G. Edwards & Sons, Inc........................................... 140,000 Fidelity Capital Markets, a division of National Financial Services LLC.......................................... 140,000 Fox-Pitt, Kelton Inc............................................... 140,000 Goldman, Sachs & Co................................................ 140,000 HSBC Securities (USA) Inc.......................................... 140,000 J.J.B. Hilliard, W.L. Lyons, Inc................................... 140,000 ING Financial Markets LLC.......................................... 140,000 Keefe, Bruyette & Woods, Inc....................................... 140,000 Legg Mason Wood Walker, Incorporated............................... 140,000 Morgan Keegan & Company, Inc....................................... 140,000 Pershing LLC....................................................... 140,000 Prudential Securities Incorporated................................. 140,000 Quick & Reilly, Inc................................................ 140,000 RBC Dain Rauscher Inc.............................................. 140,000 Raymond James & Associates, Inc.................................... 140,000 Charles Schwab & Co., Inc.......................................... 140,000 TD Waterhouse Investor Services, Inc............................... 140,000 U.S. Bancorp Piper Jaffray Inc..................................... 140,000 Advest, Inc........................................................ 25,000 Robert W. Baird & Co. Incorporated................................. 25,000 Fahnestock & Co. Inc............................................... 25,000 Friedman, Billings, Ramsey & Co., Inc.............................. 25,000 H&R Block Financial Advisors, Inc.................................. 25,000 Janney Montgomery Scott LLC........................................ 25,000 McDonald Investments Inc., a KeyCorp Company....................... 25,000 Mesirow Financial, Inc............................................. 25,000 Putnam Lovell NBF Securities Inc................................... 25,000 Muriel Siebert & Co., Inc.......................................... 25,000 Southwest Securities, Inc.......................................... 25,000 Stifel, Nicolaus & Company, Incorporated........................... 25,000 SunTrust Capital Markets, Inc...................................... 25,000 Wells Fargo Investment Services, LLC............................... 25,000 --------- Number of Designated Securities to be Underwriter Purchased - ------------------------------------------------------------------- ---------- 14,000,000 ========== 10 SCHEDULE II (TO PRICING AGREEMENT) Designated Trust: BNY Capital V Title of Designated Securities: 5.95% Trust Preferred Securities, Series F (Liquidation Amount $25 per Trust Preferred Security) Aggregate Liquidation Amount: $350,000,000 Number of Designated Securities: 14,000,000 Initial Public Offering Price of Designated Securities: 100% of the liquidation amount of the Designated Securities Purchase Price to the Underwriters of Designated Securities: 100% of the liquidation amount of the Designated Securities Compensation of Underwriters: $0.7875 per Designated Security ($11,025,000 in the aggregate) Form of Designated Securities: Book-entry only form represented by one or more global securities deposited with The Depository Trust Company ("DTC") or its designated custodian, registered in the name of Cede & Co., as the nominee of DTC, to be made available for checking by the Representatives at least twenty-four hours prior to the Time of Delivery at the office of DTC or such custodian. Registration Statement: Initial Registration Statement File Numbers: 333-103003, 333-103003-01, 333-103003-02, 333-103003-03 and 333-103003-04 Listing of Designated Securities: The Company and the Designated Trust have applied to list the Designated Securities on the New York Stock Exchange, and, if the Company elects to terminate the Designated Trust and to distribute the Subordinated Debentures to the holders of the Designated Securities in liquidation of the Designated Trust, the Company and the Designated Trust shall each use its best efforts to list the Subordinated Debentures on the New York Stock Exchange, prior to such distribution Trust Agreement: Amended and Restated Trust Agreement, dated as of April 30, 2003, among the Company, as depositor, the Trustees named therein and the Securityholders Guarantee Agreement: Guarantee Agreement, dated as of April 30, 2003, between the Company, as guarantor, and the Guarantee Trustee named therein Corresponding Junior Subordinated Debt Securities: 5.95% Junior Subordinated Deferrable Interest Debentures, Series F (the "Subordinated Debentures") Expense Agreement: Agreement as to Expenses and Liabilities, dated as of April 30, 2003, between the Company and the Designated Trust Maturity of the Subordinated Debentures: May 1, 2033 Annual Dividend Rate for Designated Securities and Annual Interest Rate for the Subordinated Debentures: 5.95% Distribution Dates for Designated Securities and Interest Payment Dates for the Subordinated Debentures: February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 2003 Redemption Provisions: The Designated Securities are subject to mandatory redemption in whole upon repayment of the Subordinated Debentures at their maturity or in whole or in part upon the redemption of the Subordinated Debentures as described below at a redemption price equal to 100% of the liquidation amount of the Designated Securities plus accumulated and unpaid distributions thereon to the date fixed for redemption The Subordinated Debentures are not redeemable prior to April 30, 2008 except, at the option of the Company, upon the occurrence of a Tax Event or a Capital Treatment Event (each as defined in the Prospectus) Special Event Redemption: Within 90 days of the occurrence of a Tax Event or a Capital Treatment Event, the Subordinated Debentures are redeemable prior to maturity (in whole but not in part) at a redemption price equal to 100% of the principal amount of the Subordinated Debentures plus accrued and unpaid interest thereon to the date fixed for redemption Optional Redemption: On or after April 30, 2008, the Subordinated Debentures are redeemable prior to maturity (in whole or in part) at a redemption price equal to 100% of the principal amount of the Subordinated Debentures plus accrued and unpaid interest thereon to the date fixed for redemption Time of Delivery: 10:00 a.m., New York City time, April 30, 2003 Closing Location: Sullivan & Cromwell LLP 125 Broad Street New York, New York 10004 Account for Payment of Purchase Price by Underwriters: BNY Capital V Acct. No. 0000131784 at The Bank of New York ABA No. 021000018 Name and Address of Representatives: Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center North Tower, 15th Floor New York, New York 10080 Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036