Exhibit 1.1
FB CAPITAL TRUST
(a Delaware business trust)
1,000,000 Preferred Securities
_____% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
__________, 1997
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
FB Capital Trust (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and Fidelity Bancorp, Inc., a Pennsylvania corporation
(the "Company") as depositor of the Trust and as guarantor (hereafter the Trust
and the Company are referred to collectively as the "Offerors"), hereby confirm
their agreement (the "Agreement") with Xxxx Xxxx & Co., Inc. (the
"Underwriter"), with respect to the issue and sale by the Trust and the purchase
by the Underwriter in such amounts as are set forth in Schedule A hereto
opposite the name of the Underwriter, 1,000,000 (the "Initial Securities") of
the Trust's _____% Cumulative Trust Preferred Securities (the "Preferred
Securities"). The Trust and the Company also propose to issue and sell to the
Underwriter, at the Underwriter's option, up to an additional 100,000 Preferred
Securities (the "Option Securities") as set forth herein. The term "Preferred
Securities" as used herein, unless indicated otherwise, shall mean the Initial
Securities and the Option Securities.
The Preferred Securities and the Common Securities (as defined
herein) are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement dated as of ____________, 1997 (the "Trust Agreement"), among the
Company, as depositor, and, together with the Trust, the "Offerors," and Bankers
Trust Company ("Trust Company"), a New York
banking corporation, as property trustee ("Property Trustee") and as Delaware
trustee ("Delaware Trustee") and Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxx (the
"Administrators" and together with the Property Trustee and the Delaware
Trustee, the "Trustees") and the holders from time to time of undivided
interests in the assets of the Trust. The Preferred Securities will be
guaranteed by the Company, on a subordinated basis and subject to certain
limitations, with respect to distributions and payments upon liquidation,
redemption or otherwise (the "Guarantee") pursuant to the Preferred Securities
Guarantee Agreement dated as of ____________, 1997 (the "Guarantee Agreement")
between the Company and the Trust Company, as guarantee (the "Guarantee
Trustee"). The assets of the Trust will consist of _____% junior subordinated
debentures due ____________, 2027 (the "Junior Subordinated Debentures") of the
Company which will be issued under the Indenture dated as of ____________, 1997
(the "Indenture"), between the Company and the Trust Company, as trustee (the
"Indenture Trustee"). Under certain circumstances, the Junior Subordinated
Debentures will be distributable to the holders of undivided beneficial
interests in the assets of the Trust. The entire proceeds from the sale of the
Preferred Securities will be combined with the entire proceeds from the sale by
the Trust to the Company of the Trust's common securities (the "Common
Securities"), and will be used by the Trust to purchase an equivalent amount of
the Junior Subordinated Debentures.
The initial public offering price for the Preferred
Securities, the purchase price to be paid by the Underwriter for the Preferred
Securities, the commission per Preferred Security to be paid by the Company to
the Underwriters and the rate of interest to be paid on the Preferred Securities
shall be agreed upon by the Company and the Underwriter, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Company and the Underwriter and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering of the
Preferred Securities will be governed by this Agreement, as supplemented by the
Price Determination Agreement. From and after the date of the execution and
delivery of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-2
(File Nos. 333-_______ and 333- ______ -01) covering the registration of the
Preferred Securities, the Guarantee and the Junior Subordinated Debentures under
the Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto and the
documents incorporated by reference therein pursuant to Item 12 of Form S-2
under the 1933 Act, at the time it becomes effective and including documents
filed after such effective time under the Securities Exchange Act of 1934, as
amended (the "1934 Act") is herein called the "Registration Statement", and the
prospectus, including the documents incorporated by reference therein pursuant
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to Item 12 of Form S-2 under the 1933 Act, included in the Registration
Statement at the time it becomes effective is herein called the "Prospectus"
except that, if any revised prospectus provided to the Underwriter by the
Company for use in connection with the offering of the Preferred Securities
differs from the prospectus included in the Registration Statement at the time
it becomes effective (whether or not such prospectus is required to be filed
pursuant to Rule 424(b)), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first furnished to the Underwriter for
such use.
The Company understands that the Underwriter proposes to make
a public offering of the Preferred Securities (the "Offering") as soon as
possible after the Registration Statement becomes effective. The Underwriter may
assemble and manage a selling group of broker-dealers that are members of the
National Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Preferred Securities under a selected
dealer agreement, the form of which is set forth as Exhibit B to this Agreement.
Section 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant
to and agree with each of the Underwriter that:
(i) The Company meets the requirements for use of Form S-2
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below and with respect to Option Securities,
up to the Date of Delivery referred to below, (A) the Registration
Statement and any amendments and supplements thereto will comply in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"); (B) neither the Registration Statement nor any amendment
or supplement thereto will 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; and (C)
neither the Prospectus nor any amendment or supplement thereto will
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Offerors by the Underwriter
expressly for use in the Registration Statement or the Prospectus, or
any information contained in any Form T-1 which is an exhibit to the
Registration Statement. The statements contained under the caption
"Underwriting" in the Prospectus constitute the only information
furnished to the Offerors in writing by the Underwriter expressly for
use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-2 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the 1934 Act, and the rules and regulations
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of the Commission thereunder (the "1934 Act Regulations") and, when
read together and with the other information in the Prospectus, at the
time the Registration Statement becomes effective and at all times
subsequent thereto up to the Closing Time, will not contain an 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 not misleading, in each case after excluding any statement that
does not constitute a part of the Registration Statement or the
Prospectus pursuant to Rule 412 of the 1933 Act Regulations.
(iii) KPMG Peat Marwick LLP, who are reporting upon the
audited financial statements included or incorporated by reference in
the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Offerors and, when duly executed by the Underwriter,
will constitute the valid and binding agreement of the Offerors
enforceable against the Offerors in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Guarantee Agreement, the Junior Subordinated
Debentures, the Trust Agreement and the Indenture have each been duly
authorized and when validly executed and delivered by the Company and,
in the case of the Guarantee, by the Guarantee Trustee, in the case of
the Trust Agreement, by the Trustees, and in the case of the Indenture,
by the Indenture Trustee, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their
respective terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, or reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or general
equitable principles; the Junior Subordinated Debentures are entitled
to the benefits of the Indenture; and the Guarantee Agreement, the
Junior Subordinated Debentures, the Trust Agreement and the Indenture
conform to the descriptions thereof in the Prospectus. The Trust
Agreement, the Guarantee Agreement, and the Indenture have been duly
qualified under the Trust Indenture Act.
(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise stated therein. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial, pro forma and statistical data included in the
Prospectus are accurate in all material respects and present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement.
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(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Prospectus. The Company is duly qualified to transact business
as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(vii) The Company is duly registered under the Bank Holding
Company Act of 1956, as amended; each subsidiary of the Company that
conducts business as a savings bank is duly authorized to conduct such
business in each jurisdiction in which such business is currently
conducted, except to the extent that the failure to be so authorized
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise; and the deposit accounts of
Fidelity Savings Bank (the "Bank") are insured by the Savings
Association Insurance Fund of the Federal Deposit Insurance Corporation
("FDIC"), up to the maximum allowable limits thereof. The Offerors have
all such power, authority, authorization, approvals and orders as may
be required to enter into this Agreement, to carry out the provisions
and conditions hereof and to issue and sell the Preferred Securities.
(viii) The Bank is a Pennsylvania chartered savings bank duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
business; the Bank is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Bank and its subsidiaries,
considered as one enterprise. All of the outstanding shares of capital
stock of the Bank have been duly authorized and validly issued and are
fully paid and non-assessable and are owned by the Company directly,
free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind.
(ix) Except for the Bank, the Company does not have any
subsidiaries.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization"; the capital stock of the Company and the
Preferred Securities conform in all material respects to the
description thereof contained or incorporated by reference in the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same. Subsequent to such date, the Company has
not issued and, other than under the Company's
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existing option plans and employee stock ownership plan, is not
obligated to issue, any other shares of capital stock; without limiting
the generality of the foregoing and except for options to purchase
_______ shares of Common Stock granted pursuant to the Company's 1993
Directors' Stock Option Plan and except for options to purchase in the
aggregate __________ shares of Common Stock granted pursuant to the
Company's other option plans there are no options, warrants, calls,
employee benefit or other plans, preemptive rights or commitments of
any character relating to the authorized but unissued capital stock or
any other equity security of the Company or the Bank, except as
disclosed in Note 10 to the consolidated financial statements in the
Prospectus.
(xi) The Preferred Securities have been duly and validly
authorized by the Trust for issuance and sale to the Underwriter
pursuant to this Agreement and, when executed and authenticated in
accordance with the Terms of the Trust Agreement and delivered by the
Trust to the Underwriter pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued and fully
paid and non-assessable. The Trust Agreement has been duly authorized
and, when executed by the proper officers of the Trust and delivered by
the Trust, will have been duly executed and delivered by the Trust and
will constitute the valid and legally binding instrument of the Trust,
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights generally or by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law). The Preferred Securities conform to
the statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same; the holders of the Preferred Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
and the issuance of the Preferred Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(xii) The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the Company
against payment therefor as described in the Prospectus, will be duly
and validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform to the
description thereof contained in the Prospectus; the issuance of the
Common Securities is not subject to preemptive or other similar rights;
and at the Closing Time, all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(xiii) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Act
with the power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus, and the Trust
has conducted no business to date, and it will conduct no business in
the future that would be inconsistent with the description of the Trust
set forth in the Prospectus; the Trust
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is not a party to or bound by any agreement or instrument other than
this Agreement, the Trust Agreement and the agreements and instruments
contemplated by the Trust Agreement or described in the Prospectus; the
Trust has no liabilities or obligations other than those arising out of
the transactions contemplated by this Agreement and the Trust Agreement
and described in the Prospectus; and the Trust is not a party to or
subject to any action, suit or proceeding of any nature.
(xiv) The issue and sale of the Preferred Securities and the
Common Securities by the Trust, the compliance by the Trust with all of
the provisions of this Agreement, the purchase of the Junior
Subordinated Debentures by the Trust, and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, loan agreement, mortgage, deed of trust or other
agreement or instrument to which the Trust is a party or by which the
Trust is bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation of the
provisions of the Trust Agreement or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Trust or any of its properties; and no consent,
approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other
governmental agency or body is required to be obtained by the Trust for
the issue and sale of the Preferred Securities and the Common
Securities by the Trust, the purchase of the Junior Subordinated
Debentures by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement and the Trust Agreement,
except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already
been obtained, or as may be required under the 1933 Act or the 1933
Act Regulations 1934 Act or 1934 Act Regulations, state securities
laws or under the Trust Indenture Act of 1939, as amended ("TIA").
The issuance by the Company of the Guarantee and the Junior
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement, the execution, delivery and performance
by the Company of the Trust Agreement, the Junior Subordinated
Debentures, the Guarantee Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, loan agreement, mortgage, deed of trust, or other material
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation or by-laws of the Company
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties; and no consent, approval, authorization, order,
license, certificate, permit, registration or qualification of or with
any such court or other governmental agency or body is required for the
issue of the Guarantee and the Junior Subordinated Debentures or the
consummation by the Company of the other transactions contemplated by
this Agreement, except for such consents, approvals, authorizations,
licenses, certificates, permits, registrations or
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qualifications as have already been obtained, or as may be required
under the 1993 Act or the 1993 Act Regulations, 1934 Act or 1934 Act
Regulations, state securities laws or under the TIA.
(xv) The Trust is not, and after giving effect to the offering
and sale of the Preferred Securities will not be, an "investment
company," or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xvi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, and none of the outstanding shares of capital stock
was issued in violation of the preemptive rights of any stockholder of
the Company or, except as disclosed in writing to the Underwriter, was
offered or sold in violation of the 1933 Act.
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock,
excluding the regular $ per share quarterly dividend paid on Common
Stock. Neither the Company nor the Bank has any material liability of
any nature, contingent or otherwise, except as set forth in the
Prospectus.
(xviii) Neither the Company nor the Bank is in violation of
any provision of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is
a party or by which it may be bound or to which any of its properties
may be subject, except for such defaults that would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xix) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as
8
one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement; all pending legal or
governmental proceedings to which the Company or the Bank is a party
that are not described in the Prospectus, including ordinary routine
litigation incidental to its business, if decided in a manner adverse
to the Company, would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xx) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xxi) The Company and the Bank each has good and marketable
title to all properties and assets described in the Prospectus as owned
by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B)
are neither material in amount nor materially significant in relation
to the business of the Company and its subsidiaries, considered as one
enterprise; all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and
under which the Company or the Bank holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
the Bank has any notice of any material claim that has been asserted by
anyone adverse to the rights of the Company or the Bank under any of
the leases or subleases mentioned above, or affecting or questioning
the rights of such corporation to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xxii) Each of the Company and the Bank owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, and neither the Company
nor the Bank has received any notice of any restriction upon, or any
notice of proceedings relating to revocation or modification of, any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xxiii) Except as disclosed in the Prospectus, no labor
problem exists with the employees of the Company or with employees of
the Bank or to the best knowledge of the Company, is imminent that
could materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or the Bank's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
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(xxiv) There are no persons with registration or other similar
rights to have any securities of the Company registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act.
(xxv) Except as disclosed in the Prospectus, the Company and
the Bank own or possess all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information
systems or procedures), trademarks, servicemarks and tradenames
(collectively, "patent and proprietary rights") currently employed by
them in connection with the business now operated by them except where
the failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs, assets or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor the Bank has received any
notice nor is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, and which infringement or conflict (if the subject of any
unfavorable decision, rule and refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxvi) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments of all taxes
due and payable in respect of such returns and no material deficiency
has been asserted with respect thereto by any taxing authority.
(xxvii) The Company has filed with NASD all documents
and notices required by NASD of companies that have issued securities
that are traded in the over-the-counter market and quotations for
which are reported by the Nasdaq National Market of the Nasdaq Stock
Market, Inc. ("Nasdaq Stock Market").
(xxviii) Neither the Trust nor the Company or any Subsidiary
has taken or will take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation, under the
Exchange Act or otherwise, of the price of the Preferred Securities.
(xxix) Neither the Company nor the Bank is or has been (by
virtue of any action, omission to act, contract to which it is a party
or by which it is bound, or any occurrence or state of facts
whatsoever) in violation of any applicable Federal, state, municipal,
or local statutes, laws, ordinances, rules, regulations and/or orders
issued pursuant to foreign, federal, state, municipal, or local
statutes, laws, ordinances, rules, or regulations (including those
relating to any aspect of banking, bank holding companies,
environmental protection, occupational safety and health, and equal
employment practices) heretofore or currently in effect, except such
violation that has been fully cured or satisfied without recourse or
that is not reasonably likely to have a Material Adverse Effect.
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(xxx) The Company and the Bank have no agreement or
understanding with any entity concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed by
the Company that is not disclosed in the Prospectus; the Company and
the Bank have no agreement or understanding with any entity concerning
the future acquisition of a controlling interest in the Company or the
Bank by any entity that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus.
(b) Any certificate signed by any authorized officer of the
Company or the Bank and delivered to the Underwriter or to counsel for the
Underwriter pursuant to this Agreement shall be deemed a representation and
warranty by the Company to the Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriter; Closing.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Trust
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Trust 1,000,000 Initial Securities at the purchase price and terms set forth
herein and in the Price Determination Agreement.
In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants an option to the Underwriter to purchase up to an
additional 100,000 Preferred Securities in accordance with the terms set forth
herein and in the Price Determination Agreement. The option hereby granted will
expire at 5:00 p.m. on the 30th day after the date the Registration Statement is
declared effective by the Commission (or at 5:00 p.m. on the next business day
if such 30th day is not a business day) and may be exercised, on one occasion
only, solely for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by you to the Company setting forth the number of Option Securities as to
which the Underwriter are exercising the option and the time, date and place of
payment and delivery for the Option Securities. Such time and date of delivery
(the "Option Closing Date") shall be determined by the Underwriter but shall not
be later than five full business days after the exercise of said option, nor in
any event prior to Closing Time, as hereinafter defined, nor earlier than the
second business day after the date on which the notice of the exercise of the
option shall have been given.
(b) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Pitney,
Xxxxxx, Xxxx & Xxxxx, or at such other place as shall be agreed upon by the
Company and the Underwriter, at 9:30 a.m. on the third full business day after
the effective date of the Registration Statement, or at such other time not more
than seven full business days thereafter as you and the Company shall determine
(such date and time of payment and delivery being herein called the "Closing
Time"). In addition, in the event that any or all of the Option Securities are
purchased by the Underwriter, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
office
11
of Pitney, Xxxxxx, Xxxx & Xxxxx, or at such other place as shall be agreed upon
by the Company and the Underwriter, on the Option Closing Date as specified in
the notice from the Underwriter to the Company. Payment for the Initial
Securities and the Option Securities, if any, shall be made to the Company by
wire transfer of immediately available funds, against delivery to the
Underwriter for the account of the Underwriter of Preferred Securities to be
purchased by it. The purchase price may be paid by a single wire transfer from
the Underwriter from which the Underwriter deducts the Commissions and fees owed
to the Underwriter, which shall be deemed to be the equivalent of simultaneous
wire transfers from the various parties due hereunder.
(c) The Initial Securities shall be issued in the form of one
or more fully registered global securities (the "Global Securities") in
book-entry form in such denominations and registered in the name of the nominee
of The Depository Trust Company (the "DTC") or in such names as the Underwriter
may request in writing at least two business days before the Closing Date or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available in New York City for examination by the Underwriter and counsel to the
Underwriter not later than 10:00 A.M. on the business day prior to the Closing
Time or the Option Closing Date, as the case may be.
Section 3. Certain Covenants of the Offerors. Each of the
Offerors covenants jointly and severally with the Underwriter as follows:
(a) The Offerors will use their best efforts to cause the
Registration Statement to become effective and will notify the Underwriter
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Preferred Securities or capital stock, for offering or sale
in any jurisdiction, or of the institution or threatening of any proceedings for
any of such purposes. The Offerors will use every reasonable effort to prevent
the issuance of any such stop order or of any order preventing or suspending
such use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Offerors will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement if the
Offerors have elected to rely upon Rule 430A, to the Prospectus (including
documents incorporated by reference into such prospectus or to the Prospectus)
of which the Underwriter shall not have previously been advised and have
previously been furnished a copy, or to which the Underwriter or counsel for the
Underwriter shall reasonably object.
(c) The Offerors have furnished or will furnish to you as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto,
12
whether filed before or after the Registration Statement becomes effective,
copies of all exhibits and documents filed therewith (including documents
incorporated by reference into the Prospectus pursuant to Item 12 of Form S-2
under the 0000 Xxx) and signed copies of all consents and certificates of
experts as you may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriter may reasonably request, and the Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will deliver
or cause to be delivered to the Underwriter, without charge, as soon as the
Registration Statement shall have become effective (or, if the Offerors have
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the Preferred
Securities as contemplated in this Agreement and in the Prospectus. If, at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Preferred Securities, any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Underwriter or counsel for the Offerors, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation
with the Underwriter, to qualify the Preferred Securities and the Junior
Subordinated Debentures, for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriter may designate and
to maintain such qualifications in effect for a period of not less than one year
from the effective date of the Registration Statement; provided, however, that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Preferred Securities
have been qualified as above provided.
13
(g) The Company will make generally available (within the
meaning of Rule 158) to its securityholders, the Underwriter and the
Securityholders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement of the Company and
its subsidiary (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a period of at least 12 months beginning after the
effective date of the Registration Statement but not later than the first day of
the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the issuance by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of Junior Subordinated Debentures. The Company and the Bank will use the
net proceeds received by them from the sale of the Junior Subordinated
Debentures in the manner specified in the Prospectus under the caption "Use of
Proceeds".
(i) The Offerors, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Company will furnish to the Underwriter, copies of all annual reports, quarterly
reports and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Commission, and
such other documents, reports, Proxy Statements, and information as shall be
furnished by the Company to its stockholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all
documents and notices required by the Nasdaq Stock Market of companies that have
issued securities that are traded in the over-the-counter market and quotations
for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay for the legal fees and related
filing fees to its counsel to prepare one or more "blue sky" surveys (each, a
"Blue Sky Survey") for use in connection with the offering of the Preferred
Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey
or surveys shall be delivered to each of the Company and the Underwriter.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file
or transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A,
a post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
14
(n) The Company will, at its expense, subsequent to the
issuance of the Preferred Securities, prepare and distribute to each of the
Underwriter and counsel to the Underwriter, a hard-bound copy of the documents
used in connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or
thirty (30) days after the date of this Agreement, whichever occurs first, incur
any material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K under the Securities Act,
except as contemplated by the Prospectus.
(p) During a period of forty-five days from the date of the
Prospectus, neither the Trust nor the Company will, without the prior written
consent of the Underwriter, directly or indirectly, offer, sell, offer to sell,
or otherwise dispose of any Preferred Securities, any other beneficial interests
in the assets of the Trust, or any preferred securities or other securities of
the Trust or the Company which are substantially similar to the Preferred
Securities, including any guarantee of such securities. The foregoing sentence
shall not apply to any of the Preferred Securities to be sold hereunder.
Section 4. Payment of Expenses and Advisory Fee.
(a) The Company will pay and bear all costs and expenses
incident to the performance of its and the Trust's obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriter, (b) the preparation, printing and distribution of
this Agreement, the Preferred Securities and the Blue Sky Survey, (c) the
issuance and delivery of the Preferred Securities to the Underwriter, including
any transfer taxes payable upon the sale of the Preferred Securities to the
Underwriter, (d) the fees and disbursements of the Company's counsel and
accountants, (e) NASD filing fees, (f) fees and disbursements of counsel in
connection with the Blue Sky Survey, (g) the qualification of the Preferred
Securities under the applicable securities laws in accordance with Section 3(f)
and any filing fee for review of the offering with the NASD, (h) the legal fees
and expenses of the Underwriter's counsel (such counsel's fees shall not exceed
$50,000 (exclusive of out-of-pocket expenses of counsel) and general
out-of-pocket expenses of the Underwriter not to exceed $15,000, (i) the fees
and expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee, in connection with the Indenture and the
Junior Subordinated Debentures; (j) the fees and expenses of the Property
Trustee and Delaware Trustee, including the fees and disbursements of counsel
for the Property Trustee and the Delaware Trustee, in connection with the Trust
Agreement and the Certificate of Trust, and (k) all other costs incident to the
performance of the Offerors' obligations hereunder.
15
(b) In addition to the commissions due to the Underwriter
under the Price Determination Agreement, at the Closing Time (and at the Option
Closing Date with respect to the Option Securities) and simultaneous with the
payment of the purchase price, the Company shall pay the Underwriter an advisory
fee equal to 1% of the gross proceeds of the Offering.
If (i) the Closing Time does not occur on or before December
31, 1997, (ii) the Company abandons or terminates the Offering, or (iii) this
Agreement is terminated by the Underwriter in accordance with the provisions of
Section 5 or 11(a), the Company shall reimburse the Underwriter for all their
reasonable out-of-pocket expenses, as set forth in this Section 4, including the
reasonable fees and disbursements of counsel for the Underwriter.
Section 5. Conditions of Underwriter' Obligations. The
obligations of the Underwriter to purchase and pay for the Preferred Securities
that they have respectively agreed to purchase pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Offerors
contained herein or in certificates of the officers or trustees of the Offerors
or any subsidiary delivered pursuant to the provisions hereof, to the
performance by the Offerors of their obligations hereunder and to the following
further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing; at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriter' knowledge or the knowledge of the Offerors
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriter. If the Offerors have elected to
rely upon Rule 430A, a prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 43OA).
(b) At the Closing Time, you shall have received:
(i) The favorable opinion, dated as of Closing Time, of
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit C.
(ii) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel for the Offerors,
in form and substance satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit D.
(iii) The favorable opinion, dated as of Closing Time, of
Xxxxxx & Xxxxxx, counsel for the Indenture Trustee, in form and
substance satisfactory to counsel for the Underwriter, substantially in
the form set forth in Exhibit E.
16
(iv) The favorable opinion, dated as of Closing Time, of
Pitney, Xxxxxx, Xxxx & Xxxxx, counsel for the Underwriter, in form and
substance satisfactory to the Underwriter.
(v) The favorable opinion, dated as of Closing Time, of
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., special tax counsel for the
Offerors, in form and substance satisfactory to the Underwriter.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, upon opinions of other counsel, who shall be counsel satisfactory
to counsel for the Underwriter (the Underwriter agrees and acknowledges that
Maluzi, Spidi, Sloane & Xxxxx, P.C. and Pitney, Xxxxxx, Xxxx & Xxxxx will rely
on the opinion of Xxxxxxxx, Xxxxxx & Finger with respect to matters of Delaware
law), in which case the opinion shall state that counsel believes that you and
your counsel are entitled to so rely. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company, the Bank and the
Trust and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date,
(i) the Registration Statement and the Prospectus, as they may then be amended
or supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, the Offerors shall have complied in all material respects with Rule
430A (if they shall have elected to rely thereon) and neither the Registration
Statement nor the Prospectus, as they may then be amended or supplemented, shall
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, (ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of business, (iii)
no action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Offerors, threatened against the Company or any subsidiary or
the Trust that would be required to be set forth in the Prospectus other than as
set forth therein and no proceedings shall be pending or, to the knowledge of
the Offerors, threatened against the Offerors or any subsidiary before or by any
federal, state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding could reasonably be expected to
materially adversely affect the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, other than as set forth in the
Prospectus, (iv) each of the Offerors shall have complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, (v) the other representations and warranties of the
Offerors set forth in Section l(a) shall be accurate in all material respects as
though expressly made at and as of the Closing Time, and (vi) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose been initiated or to the best
knowledge of the Offerors threatened by the Commission. At the Closing Time, the
17
Underwriter shall have received a certificate of the Chairman or the President,
and the Chief Financial Officer or Controller, of the Company, dated as of the
Closing Time, to such effect.
(d) At the time that this Agreement is executed by the
Company, you shall have received from KPMG Peat Marwick LLP a letter or letters,
dated such date, in form and substance satisfactory to you, confirming that they
are independent certified public accountants with respect to the Company (and
BNAB, as applicable) within the meaning of the 1933 Act and the published 1933
Act Regulations, and stating in effect that:
With respect to the Company:
(i) in their opinion, the consolidated financial statements as
of September 30, 1996 and 1995, and for each of the years in the three
year period ended September 30, 1996 and the related financial
statement schedules, if any, included or incorporated by reference in
the Registration Statement and the Prospectus and covered by their
opinions included therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
published 1933 Act Regulations;
(ii) on the basis of a reading of the minutes of all meetings
of the stockholders of the Company and the Bank, of the Board of
Directors of the Company and the Bank and of the Audit and Executive
Committees of the Board of Directors of the Bank since September 30,
1996, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any increase in
notes or subordinated debentures payable, advances from the
Federal Home Loan Bank, real estate owned, or allowance for
loan losses of the Company and its consolidated subsidiaries
or any decrease in total assets, total deposits or
stockholders' equity of the Company and its consolidated
subsidiaries or any increase in the number of outstanding
shares of capital stock of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in
the financial statements at September 30, 1996 included in the
Registration Statement; or
(B) for the period from ____________, 1997 to a
specified date not more than three days prior to the date of
this Agreement, there was any decrease in consolidated net
interest income, non-interest income or net income or the
(split-adjusted) total or fully diluted per share amounts of
net income or any increase in the consolidated provision for
loan losses or non-interest expense, in each case as compared
with the comparable period in the preceding year.
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the
18
Registration Statement (including the Selected Consolidated Financial
Data) (having compared such items with, and have found such items to be
in agreement with, the financial statements of the Company or general
accounting records of the Company, as applicable, which are subject to
the Company's internal accounting controls or other data and schedules
prepared by the Company from such records).
(iv) on the basis of a review of schedules provided to them by
the Company, nothing came to their attention that caused them to
believe that the pro forma information, set forth in the Prospectus
under the headings "Capitalization" on pages ____ and ____ had not been
correctly calculated on the basis described therein.
(e) At the Closing Time, the Underwriter shall have received
from KPMG Peat Marwick LLP letters, in form and substance satisfactory to the
Underwriter and dated as of the Closing Time, to the effect that they reaffirm
the statements made in the letter(s) furnished pursuant to Section 5(d), except
that the inquiries specified in Section 5(d) shall be made based upon the latest
available unaudited interim consolidated financial statements and the specified
date referred to shall be a date not more than two days prior to the Closing
Time.
(f) At the Closing Time, counsel for the Underwriter shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Preferred Securities as contemplated in this Agreement and the matters
referred to in Section 5(c) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Offerors, the performance of any of the covenants of the Offerors, or the
fulfillment of any of the conditions herein contained; all proceedings taken by
the Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Preferred Securities and the Junior
Subordinated Debentures as contemplated in this Agreement shall be satisfactory
in form and substance to the Underwriter and to counsel for the Underwriter.
(g) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(h) The Company shall have paid, or made arrangements
satisfactory to the Underwriter for the payment of, all such expenses as may be
required by Section 4 hereof.
(i) In the event the Underwriter exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the Underwriter to purchase the Option Securities
that it has agreed to purchase shall be subject to the accuracy of the
representations and warranties of the Offerors contained herein and of the
statements in any certificates furnished by the Offerors hereunder as of such
Option Closing Date (as if made on such
19
date), to the performance by the Offerors of their obligations hereunder and to
the receipt by you on the Option Closing Date of:
(1) A certificate, dated the Option Closing Date, of
the Chairman or the President and the Chief Financial Officer
or Controller of the Company confirming that the certificate
delivered on the Closing Time pursuant to Section 5(c) hereof
remains true as of the Option Closing Date;
(2) The favorable opinion of Xxxxxxx, Spidi, Sloane &
Xxxxx, P.C., counsel for the Company, addressed to you and
dated the Option Closing Date, in form satisfactory to Pitney,
Xxxxxx, Xxxx & Xxxxx, your counsel, relating to the Option
Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof;
(3) The favorable opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel for the Offerors and counsel
for the Indenture Trustee, addressed to you and dated the
Option Closing Date, in form satisfactory to Pitney, Xxxxxx,
Xxxx & Xxxxx, your counsel, relating to the Option Securities
and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(4) The favorable opinion of Pitney, Xxxxxx, Xxxx &
Xxxxx, dated the Option Closing Date, relating to the Option
Shares and otherwise to the same effect as the opinion
required by Section 5(b) hereof; and
(5) Letters from KPMG Peat Marwick LLP addressed to
the Underwriter and dated the Option Closing Date, in form and
substance satisfactory to the Underwriter and substantially
the same in form and substance as the letters furnished to the
Underwriter pursuant to Section 5(d) hereof.
(j) The Preferred Securities, the Guarantee and the Junior
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration, under
the Blue Sky Laws of such jurisdictions as shall have been reasonably specified
by the Underwriter and the offering contemplated by this Agreement shall have
been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriter on notice to the Offerors at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7, and 10
shall remain in effect.
Section 6. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the
Underwriter, officers, directors, employees, agents, and counsel of the
Underwriter, and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to amounts incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Preferred Securities under the "blue sky" or securities
laws thereof or filed with the Commission or any securities exchange; unless
such statement or omission or alleged statement or omission was made in reliance
upon and in conformity with written information concerning the Underwriter, the
Underwriting Agreement or the compensation of the Underwriter furnished to the
Company by or on behalf of the Underwriter expressly for inclusion in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or in any application, as the case may be, or
(ii) any breach of any representation, warranty, covenant, or agreement of the
Company contained in the Underwriting Agreement. The foregoing indemnification
with respect to any preliminary prospectus shall not inure to the benefit of the
Underwriter if the person asserting any such losses, claims, damages or
liabilities purchased Preferred Securities and a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Underwriter to
such person, if such is required by law, in connection with the written
confirmation of the sale of such Preferred Securities to such person and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability, provided that the Company
delivered the Prospectus, as amended or supplemented, to the Underwriter on a
timely basis to permit such delivery or sending. For purposes of this section,
the term "expense" shall include, but not be limited to, counsel fees and costs,
court costs, out-of-pocket costs and compensation for the time spent by the
Underwriter's directors, officers, employees and counsel according to his or her
normal hourly billing rates. The indemnification provisions shall also extend to
all affiliates of the Underwriter, its respective directors, officers,
employees, legal counsel, agents and controlling persons within the meaning of
the federal securities laws. The foregoing agreement to indemnify shall be in
addition to any liability the Company may otherwise have to the Underwriter or
the persons entitled to the benefit of these indemnification provisions.
(b) The Underwriter agrees to indemnify and hold harmless the
Offerors, their directors, officers who signed the Registration Statement, and
each person, if any, who controls the Offerors within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, against
21
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) above, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or any
application in reliance upon and in conformity with written information about
the Underwriter, the Underwriting Agreement, or the compensation of the
Underwriter, furnished to either of the Offerors by the Underwriter expressly
for use in the Registration Statement (or any amendment thereto) or such
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) or in any application.
(c) An indemnified party shall give prompt notice to the
indemnifying party if any action, suit, proceeding or investigation is commenced
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve the indemnifying party from its
obligations to indemnify hereunder, except to the extent that the indemnifying
party has been prejudiced in any material respect by such failure. If it so
elects within a reasonable time after receipt of such notice, an indemnifying
party may assume the defense of such action, including the employment of counsel
satisfactory to the indemnified parties and payment of all expenses of the
indemnified party in connection with such action. Such indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such action or the indemnifying party shall not have promptly
employed counsel satisfactory to such indemnified party or parties or such
indemnified party or parties shall have reasonably concluded that there may be
one or more legal defenses available to it or them or to other indemnified
parties which are different from or additional to those available to one or more
of the indemnifying parties, in any of which events such fees and expenses shall
be borne by the indemnifying party and the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties. The Company shall be liable for any settlement of any claim against the
Underwriter (or its directors, officers, employees, affiliates or controlling
persons), made with the Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the written consent of the
Underwriter, settle or compromise any claim against it based upon circumstances
giving rise to an indemnification claim against the Company hereunder unless
such settlement or compromise provides that the Underwriter and the other
indemnified parties shall be unconditionally and irrevocably released from all
liability in respect to such claim.
(d) In order to provide for just and equitable contribution,
if a claim for indemnification pursuant to these indemnification provisions is
made but it is found in a final judgment by a court that such indemnification
may not be enforced in such case, even though the express provisions hereof
provide for indemnification in such case, then the Company, on the one hand, and
the Underwriter, on the other hand, shall contribute to the amount paid or
payable by such indemnified persons as a result of such loss, liability, claim,
damage and expense in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriter, on the
other hand, from the underwriting, and also the relative fault of
22
the Company, on the one hand, and the Underwriter, on the other hand, in
connection with the statements, acts or omissions which resulted in such loss,
liability claim, damage and expense, and any other relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, the Underwriter shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
commission paid by the Company to the Underwriter with respect discount retained
by it applicable to the Preferred Securities purchased by the Underwriter.
(e) The indemnity and contribution agreements contained herein
are in addition to any liability which the Company may otherwise have to the
Underwriter.
(f) Neither termination nor completion of the engagement of
the Underwriter nor any investigation made by or on behalf of the Underwriter
shall effect the indemnification obligations of the Company or the Underwriter
hereunder, which shall remain and continue to be operative and in full force and
effect.
Section 7. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Offerors or its officers or trustees set forth in or
made pursuant to this Agreement will remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Offerors or
the Underwriter or any controlling person and will survive delivery of and
payment for the Preferred Securities.
Section 8. Offering by the Underwriter. The Trust and the
Company are advised by the Underwriter that the Underwriter proposes to make a
public offering of the Preferred Securities, on the terms and conditions set
forth in the Registration Statement from time to time as and when the
Underwriter deem advisable after the Registration Statement becomes effective.
Because the NASD is expected to view the Preferred Securities as interests in a
direct participation program, the offering of the Preferred Securities is being
made in compliance with the applicable provisions of Rule 2810 of the NASD's
Conduct Rules.
Section 9. Termination of Agreement.
(a) You may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriter' reasonable judgment, impracticable to
market the Preferred Securities or enforce contracts for the sale of the
Preferred Securities, or (iii) if trading in any securities of the Company has
been suspended by the Commission or the National Association of Securities
Dealers, Inc., or if trading generally on the New York Stock Exchange or in the
over-the-counter
23
market has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by such
exchange or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority with appropriate jurisdiction
over such matters, or (iv) if a banking moratorium has been declared by either
federal or Pennsylvania authorities, or (v) if there shall have been such
material and substantial change in the market for securities in general or in
political, financial or economic conditions as in your reasonable judgment makes
it inadvisable to proceed with the Offering, sale and delivery of the Preferred
Securities on the terms contemplated by the Prospectus, or (vi) if you
reasonably determine (which determination shall be in good faith) that there has
not been satisfactory disclosure of all relevant financial information relating
to the Offerors in the Offerors' disclosure documents and that the sale of the
Preferred Securities is unreasonable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6 and 7 shall remain in effect.
Section 10. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriter:
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Senior Vice President
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Pitney, Xxxxxx, Xxxx & Xxxxx
(Delivery to)
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
(Mail to)
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
If to the Company or the Trust:
Fidelity Bancorp, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
24
Attention: Xxxxxxx X. Xxxxxxxx, President and Chief Executive Officer
with a copy to:
Xxxx X. Spidi, Esq.
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Section 11. Parties. This Agreement is made solely for the
benefit of the Underwriter, and the officers, directors, employees, agents and
counsel of the Underwriter specified in Section 6, the Trust and the Company
and, to the extent expressed, any person controlling the Trust, the Company or
the Underwriter, and the directors of the Company, or trustees of the Trust,
their respective officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the Underwriter of the Preferred Securities.
Section 12. Arbitration. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in Newark, New Jersey before one or three arbitrators, each of whom
shall be knowledgeable in the field of securities law and investment banking.
Such arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject to the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 13. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New Jersey. Specified times of the day
refer to New York City time.
Section 14. Counterparts. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
25
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
Very truly yours,
FB CAPITAL TRUST
By:_________________________________
Name:
Title: Administrative Trustee
FIDELITY BANCORP, INC.
By:_________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., INC.
By:______________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
26
EXHIBIT A
FB CAPITAL TRUST
(a Delaware business trust)
1,000,000 Preferred Securities
___% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
PRICE DETERMINATION AGREEMENT
-----------------------------
____________, 1997
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among FB Capital Trust, a Delaware business
trust, (the "Trust"), Fidelity Bancorp, Inc. (the "Company" and together with
the Trust, the "Offerors") and the Underwriter named above (the "Underwriter").
The Underwriting Agreement provides for the purchase by the Underwriter from the
Trust, subject to the terms and conditions set forth therein, of 1,000,000
shares, subject to a 100,000 adjustment (to cover over-allotments, if any), of
the _____% Cumulative Trust Preferred Securities of the Trust (the "Preferred
Securities"). This Agreement is the Price Determination Agreement referred to in
the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors agree
with the Underwriter as follows:
1. The public offering price per Preferred Security shall
be $10.
2. The purchase price for the Preferred Securities to be
paid by the Underwriter shall be $10 per Preferred Security.
3. The commission per Preferred Security to be paid by
the Company to the Underwriter for their commitments hereunder shall
be $_____ per Preferred Security.
4. The interest rate on the Preferred Securities shall be
_____% per annum.
The Offerors represent and warrant to each of the Underwriter that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of New
Jersey.
If the foregoing is in accordance with the understanding of the
Underwriter of the agreement between the Underwriter and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriter and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
FB CAPITAL TRUST
By: ____________________________________________
Name:
Title: Administrative Trustee
FIDELITY BANCORP, INC.
By: ____________________________________________
Chairman of the Board
Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., INC.
By: __________________________
Xxxxx X. Xxxxxx
Senior Vice President
2
EXHIBIT B
FB CAPITAL TRUST
1,000,000 Preferred Securities
_____% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
SELECTED DEALER AGREEMENT
___________ __, 1997
Ladies and Gentlemen:
FB Capital Trust, a Delaware business trust (the "Trust") and Fidelity
Bancorp, Inc., a Pennsylvania corporation (the "Company" and together with the
Trust, the "Offerors"), are offering for sale to the public 1,000,000 shares,
subject to a 100,000 share option (to cover over-allotments, if any) of the
Trust's __% Cumulative Trust Preferred Securities (the "Preferred Securities").
1. The Underwriter named in the enclosed Prospectus has agreed to
purchase from the Trust 1,000,000 Preferred Securities and has an option to
purchase from the Trust any or all of the 100,000 Preferred Securities to cover
over-allotments, if any. The purchase is subject to the terms of an agreement
among the Underwriter and the Offerors (the "Underwriting Agreement"). The
Preferred Securities are more fully described in the Prospectus. The Underwriter
is offering, subject to the terms and conditions stated herein and in the
Underwriting Agreement, a portion of the Preferred Securities to certain dealers
(the "Selling Group") as principals, subject to the terms and conditions stated
herein and in the Underwriting Agreement, subject to modification or
cancellation of the offering without notice, at the initial public offering
price per Preferred Security hereinafter set forth and on the cover page of the
Prospectus (the "Authorized Public Offering Price") less concessions (the
"Selling Concessions").
Authorized Public Offering
Price: $10 per Preferred Security
Dealer's Selling Concession:
$____ per Preferred Security, payable or
allowable as set forth below.
Reallowances: You may reallow not in excess of $____ per
Preferred Security as a Selling Concession
to dealers who are members in good standing
of the National Association of Securities
Dealers, Inc. (the "NASD").
Delivery and Payment: Payment for the Preferred Securities sold to
you hereunder is to be made on ____________,
1997, or such other date as we advise you
and in such manner as we advise you, against
delivery of the Preferred Securities, which
shall be paid for in full at the applicable
Authorized Public Offering Price or, if we
so advise you, at such price less the
applicable Selling Concession. If payment is
at the applicable Authorized Public Offering
Price, the applicable Selling Concession
will be paid to you upon termination of this
Agreement.
Termination: This Agreement will terminate 30 days from
its date unless sooner terminated or
extended by us.
2. Members of the Selling Group may immediately offer Preferred
Securities for sale and take orders therefor at the Authorized Public Offering
Price, subject to confirmation and allotment by us. We, in turn, are prepared to
receive orders subject to confirmation and allotment by us. We reserve the right
to reject any order in whole or in part or to allot less than the number of
Preferred Securities applied for. Orders transmitted by telephone should be
confirmed by letter or facsimile transmission.
3. By becoming a member of the Selling Group, you agree (a) to take and
pay for Preferred Securities allotted and confirmed to you, (b) not to use any
such Preferred Securities to reduce or cover any short position you may have,
(c) to comply with Rules 2730, 2740, 2750, and 2810, and related interpretive
material of the NASD Conduct Rules, and (d) upon our request, to advise us of
the number of Preferred Securities purchased from us hereunder remaining unsold
by you and to resell to us any and all such unsold Preferred Securities at the
prices stated above, less all of such part of the concession allowed you as we
may determine.
4. It is assumed that the Preferred Securities sold by you will be
effectively placed for investment. If we purchase in the open market, for the
account of the Underwriter, Preferred Securities sold to you and not effectively
placed for investment, we may not allow you the dealer's concession on the
Preferred Securities so purchased or, if such concession has theretofore been
allowed you, you agree to pay it to us on demand.
5. The Underwriter may make purchases and sales of the Preferred
Securities and, in arranging for sales, to over-allot. You agree that until
termination of this Agreement, you will not make purchases or sales of any
Preferred Securities except (a) pursuant to this Agreement, (b) purchases
authorized by us, or (c) in the ordinary course of business as broker or agent
for a customer pursuant to an unsolicited order.
6. Additional copies of the Prospectus will be supplied to you in
reasonable quantity upon request.
7. The Preferred Securities are offered by us for delivery when, as,
and if sold and accepted by the Underwriter and subject to the terms stated
herein and in the Prospectus, to our right to vary the concession and terms of
the offering after their release for public sale, to the approval of counsel as
to legal matters and to withdrawal, cancellation or modification of the offer
without notice.
8. You represent that you are a member in good standing of the NASD or,
if a foreign dealer, that you will conform to the Conduct Rules of the NASD in
making sales in the United States. You represent that you will comply with the
"Free-Riding and Withholding" interpretation (IM-2110-1) of the Board of
Governors of the NASD. You are not authorized to give any information or make
any representations other than as contained in the Prospectus, or to act as
agent for the Underwriter or for us. Nothing will
2
constitute the Selling Group as an association or other separate entity or
partners with the Underwriter, with us, or with each other, but you will be
responsible for your share of any liability or expense based on any claim to the
contrary. Neither we nor the Underwriter will be under any liability to you,
except for obligations expressly assumed in this Agreement and any liabilities
under the Securities Act of 1933, as amended. No obligations on our part will be
implied or inferred herefrom.
9. The Underwriter will not have any responsibility with respect to the
right of any dealer to sell the Preferred Securities in any jurisdiction,
notwithstanding any information that we may furnish in that connection. Upon
application to us, you will be informed as to the states in which we have been
advised by counsel that the Preferred Securities have been qualified for sale or
are exempt under the respective Blue Sky or securities laws of such states. You
agree that you will not offer or sell such Preferred Securities in violation of
any applicable law including, but not limited to, the Blue Sky or securities
laws of any state or jurisdiction in which such Preferred Securities are offered
or sold by you.
10. This Agreement will be governed and construed in accordance with
the laws of the State of New Jersey.
If you desire to become a member of the Selling Group, please advise us
to that effect immediately by facsimile transmission ((000) 000-0000, attention
________________) and sign and return the enclosed copy of this letter to Xxxx,
Xxxx & Co., Inc., 00 Xxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000.
Very truly yours,
XXXX, XXXX & CO., INC.
By: ___________________________________
Name:
Title:
Confirmed as of the above date:
_________________________________
(Firm Name)
_________________________________
(Xxxxxx Xxxxxxx)
_________________________________
(City, State and Zip Code)
By: _____________________________
_________________________________
(Title)
3
