-------------
Capital Securities
City Holding Capital Trust II
UNDERWRITING AGREEMENT
October __, 1998
Wheat First Securities, Inc.
as Representative of the Several Underwriters
c/o Wheat First Securities, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
City Holding Capital Trust II (the "Trust"), a statutory business trust
created under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801, et
seq.)) and City Holding Company, a West Virginia chartered, registered bank
holding company (the "Company" and together with the Trust, the "Offerors"),
confirm their agreement (the "Agreement") with Wheat First Securities, Inc..
("Wheat First") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof) for whom Wheat First
is acting as representative (in such capacity, Wheat First will be referred to
as the "Representative"), with respect to the issue and sale by the Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective number set forth in Schedule A of 2,000,000 ____% Capital Securities
(liquidation amount of $25.00 per security) of the Trust. Said aggregate of
2,000,000 Capital Securities are herein referred to as the "Firm Capital
Securities." In addition, the Company proposes to grant to the Underwriters an
option to purchase up to 300,000 additional ______% Capital Securities (the
"Optional Capital Securities"), as provided in Section 2 hereof. The Firm
Capital Securities and, to the extent such option is exercised, the Optional
Capital Securities are hereinafter collectively referred to as the "Capital
Securities." The Capital Securities will be guaranteed by the Company, to the
extent described in the Prospectus, with respect to distributions and payments
upon liquidation, redemption and otherwise pursuant to the Guarantee Agreement
(the "Guarantee"), to be dated as of October __, 1998, between the Company and
The Chase Manhattan Bank, as Trustee (the "Guarantee Trustee"). The Capital
Securities issued in book-entry form will be issued to Cede & Co. as nominee of
The Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated
as of the First Closing Date (as defined herein) or the Second Closing Date (as
defined herein), as the case may be, (the "DTC Agreement"), among the Trust, the
Property Trustee (as defined below) and DTC.
The entire proceeds from the sale of the Capital Securities in the
Offering will be combined with the entire proceeds from the sale by the Trust to
the Company of its common securities (the "Common Securities") to purchase
$50,000,000 aggregate principal amount (plus up to an additional $7,500,000
aggregate principal amount if the Underwriters' over-allotment option is
exercised) of _____% Junior Subordinated Debentures due _________, 2028 (the
"Subordinated Debentures") issued by the Company. The Capital Securities and the
Common Securities will be issued pursuant to the Amended and Restated Trust
Agreement, to be dated as of October __, 1998 (the "Trust Agreement"), among the
Company, as depositor , and Xxxxxxx X. Xxxx, and Xxxxxx X. Xxxxxx. as
administrators (the "Administrators"), The Chase Manhattan Bank, as property
trustee (the "Property Trustee"), and The Chase Manhattan Bank Delaware, as
Delaware trustee (the "Delaware Trustee," and, together with the Property
Trustee and the Administrators, the "Trustees"), and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust. The
Subordinated Debentures will be issued pursuant to an indenture, dated as of
March 31, 1998 (the "Indenture"), between the Company and The Chase Manhattan
Bank, , as trustee (the "Debenture Trustee").
The Capital Securities, the Guarantee and the Subordinated Debentures
are hereinafter collectively referred to as the "Securities."
The Indenture, the Trust Agreement, the Guarantee, the DTC Agreement,
and this Agreement are hereinafter referred to collectively as the "Operative
Documents."
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File No. 333 64809)
containing a preliminary prospectus relating to the Offering under the
Securities Act of 1933, as amended (the "1933 Act"), and have filed such
amendments thereto and such amended preliminary prospectuses as may have been
required by the Commission on or prior to the date hereof and will file such
additional amendments to the registration statement and such amended
prospectuses relating to the Offering (pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), the 1933 Act, the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations") or
otherwise) as may hereafter be required by the Commission or pursuant to the
terms of this Agreement. Such registration statement, as amended, at the time
such registration statement becomes effective and, in the event any
post-effective amendment thereto becomes effective prior to the First Closing
Date (as hereinafter defined), at the time such post-effective amendment becomes
effective, and the prospectus relating to the Offering constituting a part
thereof (including, in the case of such registration statement, as amended, and
in the case of such prospectus, all financial statements, schedules and exhibits
thereto and all documents incorporated or deemed incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, all exhibits to such
documents and the information, if any, deemed to be a part thereof pursuant to
2
Rule 430A(b) of the 1933 Act Regulations), as from time to time amended or
supplemented pursuant to the 1934 Act, the 1934 Act Regulations, the 1933 Act,
the 1933 Act Regulations or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus relating to the Offering shall be provided to the
Underwriters by the Offerors for use in the Offering which differs from the
prospectus relating to the Offering on file at the Commission at the time of
such use (whether or not such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. The term "Preliminary
Prospectus" means the preliminary prospectus dated, October 13,, 1998
distributed by the Underwriters prior to the date hereof.
The Offerors understand that the Underwriters propose to make the
Offering of the Securities as soon as the Representative deems advisable after
the Registration Statement becomes effective and after the Trust Agreement, the
Indenture and the Guarantee have been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are incorporated by reference in the Prospectus; and all references in this
Agreement to amendments or supplements to the Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act which is incorporated
by reference in the Prospectus.
SECTION 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of each of the First Closing Date and
the Second Closing Date, and agree with each Underwriter as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act.
(ii) The Registration Statement and any Rule 462(b)
Registration Statement have been declared effective by the Commission
under the Securities Act. The Company has complied with the
Commission's satisfaction with all requests of the Commission for
additional and supplemental information. No stop order suspending the
effectiveness of the Registration Statement, or any other amendment
thereto and no cease and desist order or temporary order under Section
8A of the 1933 Act has been issued, and no proceeding for such purpose
has been instituted or is pending or threatened by the Commission. No
order preventing or suspending the use of any Prospectus or any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
3
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
the "Underwriter Information" (as defined in Section 6(a) hereof)
relating to the Underwriters furnished in writing to the Company by or
on behalf of the Underwriters expressly for use therein.
(iii) At the time the Registration Statement and any amendment
thereto becomes effective, the Registration Statement and any amendment
thereto, and the Prospectus and any further amendment or supplement
thereto, will conform in all material respects to the requirements of
the 1933 Act and the 1933 Act Regulations and will not, as of effective
date of each of the Registration Statement, and any amendment thereto,
and as of the applicable filing date of the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
the Underwriter Information.
(iv) Each document incorporated or deemed incorporated by
reference into the Prospectus pursuant to Item 12 of Form S-3 under the
1933 Act, at the time it was or hereafter is filed with the Commission,
conformed or will conform, as the case may be, in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations,
and, when read together and with the other information in the
Prospectus at each time the Registration Statement and any amendment
thereto is declared effective, during the time the Prospectus is
required to be delivered by the 1933 Act, and at the First Closing Date
and at the Second Closing Date, as the case may be, do not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are
made, not misleading.
(v) Ernst & Young LLP, which has audited certain financial
statements of the Company and Horizon, are independent public
accountants with respect to the Company and its subsidiaries and
Horizon and its subsidiaries, as required by the 1933 Act, the 1933
Regulations, the 1934 Regulations and Commission Regulation S-X.
4
(vi) The consolidated financial statements, together with the
related schedules and notes, included in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its subsidiaries at the dates indicated and the
consolidated results of operations and cash flows of the Company and
its subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved, except as disclosed in the notes to such financial
statements. The supporting schedules, if any, included in the
Registration Statement and the Prospectus present fairly, in all
material respects, the information required to be stated therein. The
summary financial data included in the Registration Statement and the
Prospectus present fairly, in all material respects, the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement
and the Prospectus. To the knowledge of the Offerors, after due
inquiry, the audited financial statements of Horizon Bancorp., Inc.
("Horizon"), together with related notes, as set forth in the
Registration Statement present fairly the financial position, the
results of operations and the cash flows of Horizon at the indicated
dates and for the indicated periods; such financial statements of
Horizon have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved, except as disclosed
in the notes to such financial statements, and all adjustments
necessary for a fair presentation of results for such periods have been
made; the selected financial information relating to Horizon included
in the Prospectus presents fairly the information shown therein and has
been compiled on a basis consistent with the financial statements
presented therein; the supporting schedules and pro forma financial
information included in the Registration Statement and the Prospectus
present fairly the information required to be stated therein.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby and, except for normal
recurring dividends on the capital stock of the Company or Horizon,
there has not been (in the case of Horizon, to the knowledge of the
Company, after due inquiry,) (A) any material adverse change in the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Trust, or the Company and its subsidiaries or
Horizon and its subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business, (B) any transaction
entered into by the Trust, the Company or any subsidiary, or Horizon or
any subsidiary, other than in the ordinary course of business, that is
material to the Trust, or the Company and its subsidiaries, considered
as one enterprise, or to Horizon and its subsidiaries, considered as
one enterprise, or (C) any dividend or distribution of any kind
declared, paid or made by the Company or Horizon on either of its
capital stock.
5
(viii) Each of the Company and Horizon is a corporation duly
organized, validly existing and in good standing under the laws of the
State of West Virginia and has the corporate power and authority under
such laws to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus;
and each of the Company and, to the knowledge of the Company, after due
inquiry, Horizon is duly qualified as a foreign corporation to transact
business and is in good standing in each 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), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, or Horizon and its
subsidiaries, considered as one enterprise.
(ix) City National Bank of West Virginia ("City National") is
a duly organized and validly existing national banking association and
continues to hold a valid certificate to do business as such and has
full power and authority to conduct its business as such. City National
is referred to herein as the "Significant Subsidiary". The Significant
Subsidiary has the authority under its jurisdiction of organization to
own, lease and operate its properties and to conduct its business and
is duly authorized to transact business and is in good standing in each
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 to be
in good standing 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.
(x) The Company does not have any subsidiaries which are
material to its business, except to the extent that the Significant
Subsidiary may be deemed to be so material.
(xi) (a) Each of the Company and Horizon had at the date
indicated a duly authorized and outstanding capitalization as set forth
in the Registration Statement and the Prospectus, (b) all of the
outstanding shares of capital stock of the Company and, to the
knowledge of the Company, after due inquiry, Horizon have been duly
authorized and validly issued and are fully paid and non-assessable,
and (c) none of the outstanding shares of capital stock of the Company
or, to the knowledge of the Company, after due inquiry, Horizon was
issued in violation of the preemptive rights of any stockholder of the
Company or Horizon, respectively.
6
(xii) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act with the
power and authority to own property and to conduct its business as
described in the Registration Statement and the Prospectus and to enter
into and perform its obligations under the Operative Documents, as
applicable, and the Capital Securities; the Trust is not a party to or
otherwise bound by any material agreement other than those described in
the Registration Statement and the Prospectus; and based on an opinion
of counsel, the Company believes the Trust is and will, under current
law, be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation.
(xiii) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and the Prospectus, will be validly issued and will represent
undivided beneficial interests in the assets of the Trust; the issuance
of the Common Securities is not subject to preemptive or other similar
rights; and at the First Closing Date and at the Second Closing Date,
as the case may be, 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
equitable right.
(xiv) As of the First Closing Date and at the Second Closing
Date, as the case may be, the Capital Securities will have been duly
authorized by the Trust Agreement and, when issued and delivered
against payment therefor in accordance with the Trust Agreement, as
provided herein, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and will conform in all material respects to the description
thereof contained in the Prospectus and the issuance of the Capital
Securities will not be subject to preemptive or other similar rights.
(xv) This Agreement has been duly authorized, executed and
delivered by the Offerors.
(xvi) The Trust Agreement has been duly authorized by the
Company and, at the First Closing Date and at the Second Closing Date,
will have been duly executed and delivered by the Company and the
Trustees, and assuming due authorization, execution and delivery of the
Trust Agreement by the Trustees, the Trust Agreement will, at the First
Closing Date and at the Second Closing Date, be a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the receivership, conservatorship and
supervisory powers of bank regulatory agencies generally as well as to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally or by general principles of
equity (regardless of whether enforcement is considered in a proceeding
at law or in equity) and the availability of equitable remedies
(collectively, the "Enforceability Exceptions").
7
(xvii) The Guarantee has been duly authorized by the Company
and, at the First Closing Date and at the Second Closing Date, the
Guarantee will have been duly executed and delivered by the Company,
and will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the
Enforceability Exceptions.
(xviii) The Indenture has been duly authorized by the Company
and, at the First Closing Date and at the Second Closing Date, will
have been duly executed and delivered by the Company and will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions; and at the First Closing Date, the Indenture will have been
duly qualified under the 1939 Act.
(xix) The Subordinated Debentures have been duly authorized by
the Company and, at the First Closing Date and at the Second Closing
Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment therefor as described in the Registration Statement and
the Prospectus, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the
Enforceability Exceptions; and the Subordinated Debentures will be in
the form contemplated by, and entitled to the benefits of, the
Indenture and will conform in all material respects to the description
thereof in the Prospectus.
(xx) Each of the Administrators of the Trust is an officer of
the Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(xxi) The Trust is not, and following consummation of the
transactions contemplated hereby will not be, an "investment company"
or a company "controlled" by an "investment company" which is required
to be registered under the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxii) The Operative Documents described in the Registration
Statement and the Prospectus conform in all material respects to the
summary descriptions thereof contained in the Registration Statement
and the Prospectus.
8
(xxiii) None of the Trust, the Company nor the Significant
Subsidiary is 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 or business
prospects of the Company and its subsidiaries, considered as one
enterprise; the execution and delivery of the Operative Documents by
the Trust or the Company, as the case may be, the issuance and delivery
of the Securities, the consummation by the Offerors of the transactions
contemplated in the Operative Documents, and compliance by the Offerors
with the terms of the Operative Documents to which they are a party
have been duly authorized by all necessary corporate action on the part
of the Company, and do not and will not result in any violation of the
charter or by-laws of the Company or of the Significant Subsidiary or
the Trust Agreement or the certificate of trust of the Trust filed with
the State of Delaware on September 17, 1998 (the "Trust Certificate"),
and do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust, the Company or any of the Significant
Subsidiary under (A) any indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Trust, the Company
or the Significant Subsidiary is a party or by which it may be bound or
to which any of its properties may be subject, except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries considered as one enterprise
or (B) any existing applicable law, rule, regulation, judgment, order
or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Trust, the Company or
the Significant Subsidiary or any of its properties, except for such
defaults that 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.
(xxiv) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, other than those that have been made
or obtained, is necessary or required for the performance by the
Company or the Trust of their obligations hereunder, in connection with
the issuance and sale of the Capital Securities or the consummation of
the transactions contemplated by the Operative Documents, except such
as may be required by the securities as "Blue Sky" laws of the various
states in connection with the offer and sale of the Capital Securities.
9
(xxv) Except as disclosed in the Registration Statement and
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 or the Trust,
threatened against or affecting the Trust, or the Company, the
Significant Subsidiary or Horizon that is required to be disclosed in
the Registration Statement and the Prospectus or that, in the final
outcome, could, in the judgment of the Company, result in any material
adverse effect on the condition (financial or otherwise), earnings or
business of the Trust, the Company and its subsidiaries considered as
one enterprise, or Horizon and its subsidiaries considered as one
enterprise, or that could materially and adversely affect the
properties or assets of the Trust, the Company and its subsidiaries
considered as one enterprise or Horizon and its subsidiaries considered
as one enterprise, or that could adversely affect the consummation of
the transactions contemplated in the Operative Documents; the aggregate
liability or loss, if any, resulting from the final outcome of all
pending legal or governmental proceedings to which the Trust, the
Company, any of the Significant Subsidiaries or Horizon and its
subsidiaries is a party or which affect any of its properties that are
not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to its business, would
not have a material adverse effect on the condition (financial or
otherwise), earnings or business affairs of the Trust, the Company and
its subsidiaries considered as one enterprise, or Horizon and its
subsidiaries, considered as one enterprise.
(xxvi) There are no contracts or documents of a character
required to be described in the Registration Statement and the
Prospectus that are not described as required.
(xxvii) The Offerors, Horizon, to the knowledge of the
Offerors, after due inquiry, and the Significant Subsidiary each owns
or possesses, or can acquire on reasonable terms, adequate patents,
patent licenses, trademarks, service marks and trade names necessary to
carry on their businesses as presently conducted, except where the
failure to own, procure or obtain any of the foregoing 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, or Horizon and its
subsidiaries, considered as one enterprise, and none of the Offerors
nor the Significant Subsidiary has received any notice of infringement
of or conflict with asserted rights of others with respect to any
patents, patent licenses, trademarks, service marks or trade names
that, in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings or business of the Trust,
or the Company and its subsidiaries considered as one enterprise, or
Horizon and its subsidiaries considered as one enterprise.
10
(xxviii) The Offerors and the Significant Subsidiary and
Horizon and its subsidiaries, to the knowledge of the Offerors, after
due inquiry, each 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 Offerors nor any of the
Significant Subsidiary has received any notice of proceedings relating
to revocation or modification of any such licenses, permits,
certificates, consents, orders, approvals or authorizations that, in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, could materially adversely affect the condition (financial or
otherwise), earnings or business of the Trust, or the Company and its
subsidiaries considered as one enterprise or Horizon and its,
subsidiaries, considered as one enterprise.
(xxix) Each of the Offerors, the Significant Subsidiary and
Horizon, to the knowledge of the Offerors, has good and marketable
title to all properties and assets described in the Registration
Statement and the Prospectus as owned by it, free and clear of all
liens, charges, encumbrances or restrictions, except such as (A) are
described in the Registration Statement and the Prospectus or (B) are
neither material in amount nor materially significant in relation to
the business of the Trust, or the Company and its subsidiaries
considered as one enterprise or Horizon and its subsidiaries,
considered as one enterprise; and all of the leases and subleases
material to the business of the Trust, and the Company and its
subsidiaries considered as one enterprise, or (to the knowledge of the
Offerors) Horizon and its subsidiaries considered as one enterprise,
and under which the Offerors or the Significant Subsidiary holds
properties described in the Registration Statement and the Prospectus,
are in full force and effect, and neither the Offerors nor the
Significant Subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Offerors
or such Significant Subsidiary 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.
(xxx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Capital Securities or the Common Stock.
(xxxi) None of the Trust, the Company, or any of their
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
("Affiliates"), or any person acting on its or any of their behalf
(other than the Underwriters, as to whom the Offerors make no
representation) has engaged or will engage, in connection with the
offering of the Capital Securities, in any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the 1933
Act.
11
(xxxii) There are no persons with registration or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act.
(xxxiii) To the knowledge of the Company all of the
representations and warranties made by Horizon in that certain
Agreement and Plan of Reorganization by and between the Company and
Horizon dated as of August 7, 1998 are true and correct as of the date
of this Agreement.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or the Significant Subsidiary and delivered to
the Representative or to counsel for the Underwriters shall be deemed only a
representation and warranty by the Trust or the Company, as the case may be, to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; 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 each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at a price of $25
per Security, the number of Firm Capital Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional Capital Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Deliveries of certificates for the Firm Capital Securities shall be
made at the office of Wheat First in Richmond, Virginia, and payment of the
purchase price for the Firm Capital Securities shall be made by Wheat First, on
behalf of the several Underwriters, to the Trust by wire transfer of immediately
available funds contemporaneous with closing at such place as shall be agreed
upon by Wheat First and the Offerors, at 10:00 A.M. on ________________, 1998
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by Wheat First and the Offerors (such time and date of payment and delivery
being herein called the "First Closing Date").
(c) Payment for the Firm Capital Securities purchased by the
Underwriters shall be made to the Trust by wire transfer of immediately
available funds, against delivery for the respective accounts of the
Underwriters of certificates for the Firm Capital Securities. Certificates for
the Firm Capital Securities shall be in such denominations and registered in
such names as the Underwriters may request in writing at least one business day
before the First Closing Date. It is understood that each Underwriter has
authorized Wheat First, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Firm Capital Securities which it has
agreed to purchase. Wheat First, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Firm Capital Securities, if any, to be purchased by any
12
Underwriter whose funds have not been received by the First Closing Date, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The certificates representing the Firm Capital Securities shall be made
available for examination and packaging by the Underwriters in Richmond,
Virginia not later than 10:00 A.M. on the last business day prior to the First
Closing Date.
(d) In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 300,000 Optional
Capital Securities at the purchase price per security to be paid for the Firm
Capital Securities, plus accumulated distributions thereon from _________, 1998,
for use solely in covering any over-allotments made by the Representative for
the account of the Underwriters in the sale and distribution of the Firm Capital
Securities. The option granted hereunder may be exercised at any time (but not
more than once) within 30 days after the first date that any of the Capital
Securities are released by the Representative for sale to the public, upon
notice by the Representative to the Company setting forth the aggregate number
of Optional Capital Securities as to which the Underwriters are exercising the
option, the names and denominations in which the certificates for such
securities are to be registered and the time and place at which such
certificates will be delivered. Such time of delivery (which may not be earlier
than the First Closing Date), being herein referred to as the "Second Closing
Date," shall be determined by the Representative, but if at any time other than
the First Closing Date shall not be earlier than three nor later than five full
business days after delivery of such notice of exercise. The number of Optional
Capital Securities to be purchased by each Underwriter shall be determined by
multiplying the number of Optional Capital Securities to be sold by the Company
pursuant to such notice of exercise by a fraction, the numerator of which is the
number of Firm Capital Securities to be purchased by such Underwriter as set
forth opposite its name in Schedule A and the denominator of which is 2,000,000
(subject to such adjustments to eliminate any fractional share purchases as the
Representative in its discretion may make). The manner of payment for and
delivery of the Capital Securities shall be the same as for the Firm Capital
Securities purchased from the Company as specified in the three preceding
paragraphs. At any time before lapse of the option, you may cancel such option
by giving written notice of such cancellation to the Company. If the option is
cancelled or expires unexercised in whole or in part, the Company will
deregister under the 1933 Act the number of Optional Capital Securities as to
which the option has not been exercised.
(e) As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Capital Securities
will be used to purchase Subordinated Debentures of the Company, the Company
hereby agrees to pay at the First Closing Date or the Second Closing Date, as
13
the case may be, to Wheat First in immediately available funds, for the accounts
of the several Underwriters, $____ per Capital Security to be delivered by the
Trust hereunder at the First Closing Date or the Second Closing Date, as the
case may be.
(f) The Underwriter will comply with all material applicable laws and
rules in connection with the sale of the Securities and the Underwriters are not
acting as an agent for the Company.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any post-effective amendments to the Registration Statement to be
declared effective by the Commission (as and when specified in the reasonable
request of the Representative) and will prepare the Prospectus in a form
reasonably approved by the Representative and file such Prospectus pursuant to
Rule 424(b) under the 1933 Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the 1933 Act. The Company will make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to any First
Closing Date which shall be reasonably disapproved by the Representative after
reasonable notice thereof. The Company will notify the Representative
immediately and confirm the notice in writing (i) when the Registration
Statement or any post-effective amendment thereto (and any other amendment
thereto) has been declared effective by the Commission, (ii) of the transmittal
to the Commission for filing of any amendment or supplement to the Prospectus,
(iii) of the receipt by the Company of any comments from the Commission or any
state securities commission with respect to the transactions contemplated by
this Agreement, (iv) of any request by the Commission or any state securities
commission for any amendment or supplement to the Registration Statement or the
Prospectus, or for additional information, (v) of the issuance by the
Commissioner or any state securities commission or court of competent
jurisdiction of any order suspending either the Offering or the use of either
the Preliminary Prospectus or the Prospectus or of the threat of any such action
by any such entity, (vi) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto or of the receipt by the Company of any notification with respect to the
suspension of the registration, qualification or exemption of the Capital
Securities for offering or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose. In the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such registration,
qualification or exemption, the Company promptly will use its best efforts to
obtain its withdrawal.
14
(b) The Company will give the Representative notice of its intention to
file or prepare any amendment or supplement to the Registration Statement or any
amendment or supplement to the Prospectus (whether, in the case of the
Registration Statement and the Prospectus, by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise and, in the case of the Prospectus,
by amending or supplementing the Prospectus then being used by the
Underwriters).
(c) The Company has furnished or will deliver to the Representative and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith) and signed copies of all consents and certificates of experts,
and will also deliver to the Representative a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from
time to time until the effective date of the Registration Statement, as many
copies of each Preliminary Prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, from time to time during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or the Prospectus in order that the
Prospectus will not include any untrue statements 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 opinion of such
counsel, at any such time to amend the Registration Statement or 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 statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) If, at the time that the Registration Statement or a post-effective
amendment thereto becomes effective, any information shall have been omitted
therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then
immediately following effectiveness, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, 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 and will use its best efforts to cause any such post-effective amendment
to be declared effective as promptly as practicable.
15
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Capital Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representative 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. In each
jurisdiction in which the Capital Securities have been so qualified the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(i) The Offerors will cooperate with the Underwriters and use their
best efforts to permit the Capital Securities to be eligible for clearance and
settlement through the facilities of DTC.
(j) The Trust will use the net proceeds received by it from the sale of
the Capital Securities, and the Company will use the proceeds received by it
from the sale of the Subordinated Debentures, in the manners specified in the
Prospectus under "Use of Proceeds."
(k) Prior to _____________, 1998, neither the Trust nor the Company
will, without the prior written consent of Wheat First, directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, any securities that are substantially similar to the
Capital Securities, any security convertible into exchangeable or exercisable
for Capital Securities or any equity security substantially similar to the
Capital Securities (except for the Securities issued pursuant to this Agreement
or with the prior written consent of Wheat First).
16
SECTION 4. Payment of Expenses.
The Company will pay all costs and expenses incident to the performance
of its obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 9 hereof, including all costs and expenses incident to (i) the printing
or other production of documents, including the Operative Documents, with
respect to the transactions, including any costs of printing the Registration
Statement originally filed with respect to the Capital Securities and any
amendment thereto, any Rule 462(b) Registration Statement, and the Prospectus
and any amendment or supplement thereto, this Agreement and any blue sky
memoranda, (ii) all arrangements relating to the delivery to the Underwriters of
copies of the foregoing documents, (iii) the fees and disbursements of the
counsel, the accountants and any other experts or advisors retained by the
Company, (iv) preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Capital Securities, including transfer agent's and
registrar's fees, (v) the qualification of the Capital Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, (vi) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Capital Securities, and (vii) the fees and expenses of any trustee appointed
under any of the Operative Documents, including the fees and disbursements of
counsel for such trustees in connection with the Operative Document. If the sale
of the Capital Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied, because this Agreement is terminated pursuant to Section 9
hereof or because of any failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by reason of a default by any of the
Underwriters, the Company will reimburse the Representative upon demand for all
reasonable out-of-pocket expenses (including counsel fees and disbursements)
that shall have been incurred by it in connection with the proposed purchase and
sale of the Capital Securities. The Company shall not in any event be liable to
any of the Underwriters for the loss of anticipated profits from the
transactions covered by this Agreement.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any Trustee of the Trust, officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the performance
by the Offerors of their obligations hereunder, and to the following further
conditions:
(a) If the Registration Statement or any post-effective amendment to
the Registration Statement filed prior to the First Closing Date has not been
declared effective as of the time of execution hereof, the Registration
Statement or any such post-effective amendment, and, if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement, shall have
been declared effective not later than the earlier of (i) 11:00 A.M., Eastern
Standard Time, on the first business day following the date on which this
Agreement is executed, and (ii) the time confirmations are sent or given as
specified by Rule 462(b) or, with respect to the Registration Statement, such
later time and date as shall have been consented to by the Representative; if
required, the Prospectus or any term sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission in
17
the manner and within the time period required by Rules 434 and 424(b) under the
Act; no stop order suspending the effectiveness of the Registration Statement or
any amendment thereto shall have been issued, and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of the
Company or Wheat First, shall be contemplated by the Commission; and the Company
shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) Opinion of Outside Counsel for Offerors. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of Hunton & Xxxxxxxx, counsel for the Company, to the effect set forth in
Exhibit A hereto. 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 Trustees and Administrators of the Trust, officers of the
Company and its subsidiaries and certificates of public officials.
(c) Opinion of Special Delaware Counsel for Offerors. If the opinion
referred to in Section 5(b) does not cover applicable matters of Delaware law,
at the Closing Date, the Underwriters shall have received the favorable opinion,
dated as of the Closing Date, of special Delaware counsel to the Offerors, to
the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for The Chase Manhattan Bank. At the Closing
Date, the Underwriters shall have received the favorable opinion, dated as of
the Closing Date, of Cravath, Swaine & Xxxxx, counsel to The Chase Manhattan
Bank, as Property Trustee under the Trust Agreement, and Guarantee Trustee under
the Guarantee Agreement, to the effect set forth in Exhibit C hereto.
(e) Opinion of Tax Counsel for the Offerors. At the Closing Date, the
Underwriters shall have received an opinion, dated as of the Closing Date, of
Hunton & Xxxxxxxx, tax counsel to the Offerors, to the effect that (i) the Trust
will be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation and (ii) although the
discussion set forth in the Prospectus under the heading "Certain Federal Income
Tax Consequences" does not purport to discuss all possible United States federal
income tax consequences of the purchase, ownership and disposition of the
Capital Securities, such discussion constitutes, in all material respects, a
fair and accurate summary of the United States federal income tax consequences
of the purchase, ownership and disposition of the Capital Securities under
current law. Such opinion may be conditioned on, among other things, the initial
and continuing accuracy of the facts, financial and other information, covenants
and representations set forth in certificates of officers of the Company and
other documents deemed necessary for such opinion.
18
(f) Opinion of Counsel for Underwriters. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of Xxxxxx & Bird LLP, counsel for the Underwriters, with respect to the
incorporation and legal existence of the Company, the Capital Securities, the
Indenture, the Guarantee, this Agreement, and the Prospectus and other related
matters as the Underwriters may require. 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 Trustees of the Trust, officers of
the Company and its subsidiaries and certificates of public officials. Such
counsel may rely as to matters of West Virginia, Virginia, New York and Delaware
law on the opinions of counsel furnished pursuant to subsections (b), (c) and
(d) of this Section.
(g) Certificates. At the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the Underwriters shall
have received a certificate of the Chairman, any Vice Chairman, the Chief
Executive Officer, the President or any Vice President of the Company and of the
chief financial officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee of the Trust, dated as of the Closing
Date, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof were true and
correct, in all material respects, when made and are true and correct, in all
material respects, with the same force and effect as though expressly made at
and as of the Closing Date, and (iii) the Offerors have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Date.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriters shall have received from Ernst & Young LLP a letter,
dated such date, in form and substance reasonably satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in the
Prospectus.
(i) Bring-down Comfort Letter. At the Closing Date, the Underwriters
shall have received from Ernst & Young LLP a letter, dated as of the Closing
Date, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Date.
19
(j) On or before the Closing Date, the Representative and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(k) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Offerors at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 6, 7 and 8 and this Section 5(l) shall survive any such
termination and remain in full force and effect.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representative and
counsel for the Underwriters. The Company shall furnish to the Representative
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representative and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Optional Capital Securities shall be subject, in their discretion,
to each of the foregoing conditions to purchase the Firm Capital Securities,
except that all references to the Firm Capital Securities and the First Closing
Date shall be deemed to refer to such Optional Capital Securities and the
related Second Closing Date, respectively.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Offerors agree to jointly and
severally indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact included in the
Registration Statement or any amendment to the Registration Statement,
including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the 1933 Act Regulations, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus or prospectus, including the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
20
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
Wheat First), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above; provided, however, that
this Section 6(a) shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon
and in conformity with written information furnished to the Offerors by
any Underwriter through Wheat First expressly for use in the
Registration Statement or any amendment to the Registration Statement
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). Such written information provided by the
Underwriters is referred to as "Underwriter Information."
The foregoing indemnification with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities
purchased Capital Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Offerors shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if such is required by law, at or prior to
the written confirmation of the sale of such shares 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.
(b) Indemnification of Offerors, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors and officers, the Trust, each of the Trustees and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
21
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Offerors by such Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Wheat First, and, in the
case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Offerors. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in
Section 6 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other hand from the offering of the Capital
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant considerations.
22
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Capital
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Underwriters
in the Offering, bear to the aggregate initial offering price of the Capital
Securities. The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Capital Securities purchased by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each officer and director of the Company, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
23
the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or trustees of the Trust
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Trust or the Company, and shall
survive delivery of the Capital Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement
with respect to the Firm Capital Securities or any Optional Capital Securities,
by notice to the Offerors, at any time at or prior to the First Closing Date or
the Second Closing Date, respectively (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust or 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 material adverse change in the financial markets
in the United States or any outbreak of hostilities or escalation thereof or
other calamity or crisis, in each case the effect of which is such as to make
it, in the judgment of the Underwriters, impracticable to market the Capital
Securities or to enforce contracts for the sale of the Capital Securities, or
(iii) if trading in any securities of the Company has been suspended or limited
by the Commission, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market System has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or West Virginia
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
6, 7, and 8 and this Section 9 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the First Closing Date or at the Second
Closing Date to purchase the First Capital Securities or the Optional Capital
Securities, as the case may be, which it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), the Underwriters shall have the
24
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other Underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Underwriters shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
total number of Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective purchasing obligations
hereunder bear to the purchasing obligations of all non-defaulting Underwriters,
or
(b) if the number of Defaulted Securities exceeds 10% of the Securities
to be purchased hereunder, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Underwriters or the Company shall have the right
to postpone the First Closing Date or the Second Closing Date, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o Wheat First at 000 Xxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, attention of Xxxxx X. Xxxxxxxx with a
copy to Xxxxxx & Bird LLP, 000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx Xxxxxxxx, 00xx
Xxxxx, Xxxxxxxxxx, X.X. 00000, attention of Xxxxx X. Xxxxxx III; notices to the
Offerors shall be directed to City Holding Company, 00 Xxxxxxxxx Xxxx, Xxxxx
Xxxxx, Xxxx Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx with a copy to Hunton &
Xxxxxxxx, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx Xxxxxxxx, 00000-0000, attention of
Xxxxxx X. Xxxxx, Xx.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
25
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Offerors
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Capital Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
CITY HOLDING COMPANY.
By:
---------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
CITY HOLDING CAPITAL TRUST II
By: City Holding Company
By:
---------------------------------
Xxxxxx X. Xxxxxx
Administrator
CONFIRMED AND ACCEPTED, as
of the date first above
written:
WHEAT FIRST SECURITIES, INC.
By:
---------------------------------
Xxxxx X. Xxxxxxxx
Managing Director
27
SCHEDULE A
Number of
Capital Securities
------------------
Name of Underwriters
--------------------
Wheat First Securities, Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
---------
Total 2,000,000
=========
EXHIBIT A
Form of Opinion of Hunton & Xxxxxxxx , Counsel for the Company, to be
delivered pursuant to Section 5(b) of this Agreement:
1. The Company is validly existing and in good standing as a
corporation under the laws of West Virginia.
2. The Company is registered as a bank holding company under the Bank
Holding Act of 1956, as amended.
3. City National Bank of West Virginia is validly existing as a
national banking association under the laws of the United States and continues
to hold a valid bank charter and has full power and authority to conduct its
business as such.
4. Each of the subsidiaries of City National Bank of West Virginia is
validly existing as a corporation under the laws of its jurisdiction of
incorporation and has full power and authority to conduct its business as such.
5. Under the West Virginia Business and Nonprofit Corporation Law, the
Company has the corporate power and authority to (a) own, lease and operate its
properties and to conduct its business as described in the Prospectus, (b)
execute and deliver, and to perform its obligations under, the Operative
Documents to which it is a party and (c) issue and perform its obligations under
the Junior Subordinated Debentures.
6. 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 our knowledge, threatened against or
affecting the Company or any subsidiary that in the final outcome could in our
judgment result in 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, or that could materially and
adversely affect the properties or assets of the Company and its subsidiaries
considered as one enterprise, or that could adversely affect the consummation of
the transactions contemplated in the Operative Documents. The aggregate
liability or loss, if any, resulting from the final outcome of all pending legal
or governmental proceedings to which the Company or any subsidiary is a party or
which affect any of its properties that are not described in the Prospectus,
including ordinary routine litigation incidental to its business, 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.
7. Neither the Company nor any subsidiary is 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
A-1
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 or business prospects of the Company and
its subsidiaries considered as one enterprise.
8. The execution and delivery by the Company of the Operative Documents
to which it is a party, the issuance and delivery of the Securities and the
Common Securities and the consummation by the Company of the transactions
contemplated by the Operative Documents do not and will not violate or conflict
with the Articles of Incorporation or the By-laws of the Company.
9. The execution and delivery by the Company of the Operative Documents
to which it is a party, the issuance and delivery of the Capital Securities, the
Common Securities, the issuance and delivery of the Junior Subordinated
Debentures and the consummation by the Company of the transactions contemplated
by the Operative Documents do not and will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary under (a) any indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
the Company or any subsidiary is a party or by which it may be bound or to which
any of its properties may be subject, or (b) to our knowledge any existing
applicable law, rule, regulation, qualification, judgment, order or decree of
any governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of its properties except
for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company or
its subsidiaries considered as one enterprise. While the Company has a
$35,000,000 revolving credit loan agreement with SunTrust Bank, Nashville, N.A.
("SunTrust") that restricts the ability of the Company to create certain
subsidiaries or become liable for certain debts, the Company and SunTrust have
signed a letter agreement dated as of October 9, 1998, that waives these
restrictions for purposes of the formation of the Trust and the issuance of the
Capital Securities and the Subordinated Debentures.
10. No consent, approval, authorization or order of, or filing or
registration or qualification with, any court or governmental agency or body, is
required on the part of the Company for the authorization, issuance, sale and
delivery of the Securities.
11. No approval of any governmental agency which has not been made or
obtained is required for the execution or delivery by the Company of the
Operative Documents to which it is a party, or the consummation by the Company
of the transactions contemplated thereby.
12. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
A-2
13. The Trust Agreement has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust Indenture
Act of 1939 as amended.
14. The Guarantee has been duly authorized, executed and delivered by
the Company, and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by the Enforceability Exceptions,
and the Guarantee has been duly qualified under the Trust Indenture Act of 1939,
as amended.
15. The Junior Subordinated Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, and the Junior Subordinated Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended.
16. The Junior Subordinated Debentures have been duly authorized for
issuance by the Company, and the Junior Subordinated Debentures, when executed,
authenticated and delivered in the manner provided for in the Junior
Subordinated Indenture and paid for in accordance with the Junior Subordinated
Debenture Purchase Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits of the Junior Subordinated Indenture and
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by the Enforceability Exceptions.
17. The statements in the Prospectus under the captions "Description
of Capital Securities," "Description of Guarantee," "Description of Junior
Subordinated Debentures" and "Relationship Among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee," to the extent that such
statements purport to summarize certain provisions of the Capital Securities,
the Junior Subordinated Debentures, the Guarantee and the Junior Subordinated
Indenture have been reviewed by us and fairly summarize such provisions in all
material respects and conform in all material respects to the instruments
defining the same.
18. Neither the Company nor the Issuer Trust is, or immediately
following consummation of the transactions contemplated by the Underwriting
Agreement will be, required to be registered under the Investment Company Act of
1940, as amended.
19. Based on the foregoing and such other information as we have
considered necessary for the purposes hereof, we confirm that the statements of
law or legal conclusions and opinions set forth under the section entitled
"Certain Federal Income Tax Consequences" in the Prospectus, subject to the
assumptions and conditions described therein, constitute our opinion. Our
opinion is based on the case law, Internal Revenue Service rulings and
pronouncements and judicial decisions as they exist at the date hereof. The
authorities are all subject to change, and such change may be made with
retroactive effect. We can give no assurances that, after such change, our
opinion would not be different.
A-3
20. The Registration Statement and any post-effective amendments
thereto have become effective under the 1933 Act and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or such amendments thereto has been issued under the 1933 Act, and no
proceeding therefor has been instituted or is pending or threatened by the
Commission.
21. The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Closing Date
(other than the financial statements and related notes thereto, related
schedules and financial and statistical data, and descriptions of accounting
treatment included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
22. In addition, such counsel shall state that they have participated
in the preparation of the Registration Statement and the Prospectus and, while
they are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as specified above), or the basis of the
foregoing, no facts have come to the attention of such counsel to lead them to
believe that, as of the effective date of the Registration Statement or any
post-effective amendment thereto or the date of the Prospectus or as of the
Closing Date, either the Registration Statement, any post-effective amendment
thereto, or the Prospectus (or, as of its date, any further amendment or
supplement thereto made by the Company prior to the Closing Date) contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (except for the
financial statements and related notes thereto, related schedules and financial
and statistical data, and descriptions of accounting treatment included therein,
as to which such counsel need express no belief).
23. Such counsel does not know of any amendment or supplement to the
Registration Statement or any post-effective amendment thereto required to be
filed or of any contract, agreement, instrument, lease, license, arrangement or
understanding of a character required to be filed as an exhibit to, described
in, the Registration Statement, post-effective amendment thereto, or the
Prospectus, as amended or supplemented, which is not filed or described as
required.
A-4
EXHIBIT B
Form of Opinion of Xxxxxxxx, Xxxxxx & Finger, Special Delaware Counsel
to the Offerors, to be delivered pursuant to Section 5(c) of this Agreement:
1. The Trust has been duly created and is validly existing in good
standing as a statutory business trust under the Delaware Business Trust Act.
2. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (a) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a party,
(b) issue and perform its obligations under the Capital Securities and the
Common Securities, and (c) conduct its business as described in the Registration
Statement, or the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Administrators, and is enforceable against the Company and the
Administrators, in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or transfer and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
4. The Capital Securities have been duly authorized by the Trust
Agreement, and the Capital Securities, when duly issued, executed and
authenticated in accordance with the Trust Agreement and delivered and paid for
in accordance with the Agreement, will be, subject to the qualifications set
forth in paragraph 6 below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will be entitled to the benefits of the
Trust Agreement, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally, (ii) principles
of equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law), and (iii)
the effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
5. The Common Securities have been duly authorized for issuance by the
Trust Agreement and, when issued, executed and authenticated in accordance with
the Trust Agreement and delivered and paid for in accordance with the Common
Security Purchase Agreement, will be validly issued undivided beneficial
interests in the assets of the Trust. The issuance of the Common Securities is
not subject to preemptive rights under the Delaware Business Trust Act or the
Trust Agreement.
B-1
6. The holders of the Capital Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law. We
bring to your attention, however, that the holders of the Capital Securities may
be obligated, pursuant to the Trust Agreement, to (a) provide indemnity and/or
security in connection with, and pay taxes or governmental charges arising from,
transfers or exchange of Capital Securities and the issuance of replacement
Capital Securities Certificates and (b) provide security or indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and powers under the Trust Agreement.
7. No authorization, approval, consent or order of any Delaware court
or any Delaware governmental authority or Delaware agency is required to be
obtained by the Trust solely in connection with the execution, delivery or
performance by the Trust of the Operative Documents to which it is a party, or
the consummation by the Trust of the transactions contemplated thereby or the
issuance and sale of the Capital Securities. We express no opinion in this
paragraph 7, however, as to any governmental approvals which may be required
under state securities or "blue sky" laws.
8. None of the execution and delivery by the Trust of the Operative
Documents, or the issuance and sale of the Capital Securities by the Trust in
accordance with the terms of the Agreement or the consummation by the Trust of
the other transactions contemplated thereby, (a) violate any applicable Delaware
laws, or (b) conflict with the Certificate of Trust or the Trust Agreement,
except that we express no opinion in this paragraph 8 with respect to (i) the
rights to indemnity and contribution contained in the Trust Agreement which may
be limited by state securities laws or the public policy underlying such laws or
(ii) any state securities or "blue sky" laws.
B-2
EXHIBIT C
Form of Opinion of Cravath, Swaine & Xxxxx, Special Counsel for the
Property Trustee, Guarantee Trustee, and Debenture Trustee to be delivered
pursuant to Section 5(d) of this Agreement:
1. The Chase Manhattan Bank has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the State
of New York.
2. The Chase Manhattan Bank has the corporate trust power and authority
to execute, deliver and perform its duties under the Junior Subordinated
Indenture, the Guarantee and the Trust Agreement, has duly executed and
delivered the Junior Subordinated Indenture, the Guarantee and the Trust
Agreement, and insofar as the laws governing the trust powers of The Chase
Manhattan Bank are concerned, and assuming due authorization, execution and
delivery thereof by the other parties thereto, each of the Junior Subordinated
Indenture, the Guarantee and the Trust Agreement constitutes a legal, valid and
binding agreement of The Chase Manhattan Bank, enforceable against The Chase
Manhattan Bank in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law.
3. The execution, delivery and performance by The Chase Manhattan Bank
of the Junior. Subordinate Indenture, the Guarantee and the Trust Agreement do
not conflict with or constitute a breach of the charter or bylaws of The Chase
Manhattan Bank.
4. No approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of The Chase Manhattan Bank is
required in connection with the execution and delivery by The Chase Manhattan
Bank of the Junior Subordinated Indenture, the Guarantee or the Trust Agreement
or the performance by The Chase Manhattan Bank of its duties thereunder, except
such as have been obtained, taken or made.
C-1
