EXHIBIT 1
BBC CAPITAL TRUST I
(a Delaware business trust)
2,000,000 Preferred Securities
_____% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
UNDERWRITING AGREEMENT
__________, 1997
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Xxxxxx Xxxxxxx Incorporated
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
BBC Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and BankAtlantic Bancorp, Inc., a Florida corporation
(the "Company" and, together with the Trust, the "Offerors") as depositor of the
Trust and as guarantor, hereby confirm their agreement (the "Agreement") with
Xxxx Xxxx & Co., Inc. and Xxxxxx Xxxxxxx Incorporated (the "Underwriters"), with
respect to the issue and sale by the Trust and the purchase by the Underwriters,
acting severally and not jointly, in such amounts as are set forth in Schedule A
hereto opposite the name of such Underwriter, 2,000,000 (the "Initial
Securities") of the Trust's _____% Cumulative Trust Preferred Securities (the
"Preferred Securities"). The Trust and the Company also propose to issue and
sell to the Underwriters, at the Underwriter's option, up to an additional
300,000 Preferred Securities (the "Option Securities") as set forth herein. The
term "Preferred Securities" as used herein, unless indicated otherwise, shall
mean the Initial Securities and the Option Securities.
The Preferred Securities and the Common Securities (as defined herein)
are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement dated as of ____________, 1997 (the "Trust Agreement"), among the
Company, as depositor, and Wilmington Trust Company ("Trust Company"), a
Delaware banking corporation, as property trustee ("Property Trustee") and as
Delaware trustee ("Delaware Trustee") and Xxxx X. Xxxxx, Xxxxx X. Xxxxxx and
Xxxxxx X. Xxxxx (the "Administrative Trustees," and together with the Property
Trustee and the Delaware Trustee, the "Trustees") and the holders from time to
time of undivided interests in the assets of the Trust. The Preferred Securities
will be guaranteed by the Company, on a subordinated basis and subject to
certain limitations, with respect to distributions and payments upon
liquidation, redemption or otherwise (the "Guarantee") pursuant to the Preferred
Securities Guarantee Agreement dated as of ____________, 1997 (the "Guarantee
Agreement") between the Company and the Trust Company, as guarantee trustee (the
"Guarantee Trustee"). The assets of the Trust will consist of _____% junior
subordinated debentures due ____________, 2027 (the "Junior Subordinated
Debentures") of the Company which will be issued under an indenture dated as of
____________, 1997 (the "Indenture"), between the Company and the Trust Company,
as trustee (the "Indenture Trustee"). Under certain circumstances, the Junior
Subordinated Debentures will be distributable to the holders of undivided
beneficial interests in the assets of the Trust. The entire proceeds from the
sale of the Preferred Securities will be combined with the entire proceeds from
the sale by the Trust to the Company of the Trust's common securities (the
"Common Securities"), and will be used by the Trust to purchase an equivalent
amount of the Junior Subordinated Debentures.
The initial public offering price for the Preferred Securities, the
purchase price to be paid by the Underwriters for the Preferred Securities, the
commission per Preferred Security to be paid by the Company to the Underwriters
and the rate of interest to be paid on the Preferred Securities shall be agreed
upon by the Company and the Underwriters, and such agreement shall be set forth
in a separate written instrument substantially in the form of Exhibit A hereto
(the "Price Determination Agreement"). The Price Determination Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Underwriters and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File Nos.
333-23771 and 333-23771-01) covering the registration of the Preferred
Securities, the Guarantee and the Junior Subordinated Debentures under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior
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to the effective date of such registration statement, an amendment to such
registration statement, including a final prospectus. Each prospectus used
before the time such registration statement becomes effective is herein called a
"preliminary prospectus". Such registration statement, including the exhibits
thereto and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it becomes effective and including
documents filed after such effective time under the Securities Exchange Act of
1934, as amended (the "1934 Act") is herein called the "Registration Statement",
and the prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, included in the Registration
Statement at the time it becomes effective is herein called the "Prospectus"
except that, if any revised prospectus provided to the Underwriters by the
Company for use in connection with the offering of the Preferred Securities
differs from the prospectus included in the Registration Statement at the time
it becomes effective (whether or not such prospectus is required to be filed
pursuant to Rule 424(b)), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first furnished to the Underwriters for
such use.
The Company understands that the Underwriters propose to make a public
offering of the Preferred Securities (the "Offering") as soon as possible after
the Registration Statement becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Preferred Securities under a selected
dealer agreement, the form of which is set forth as Exhibit B to this Agreement.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant
to and agree with each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below and with respect to Option Securities,
up to the Date of Delivery referred to below, (A) the Registration
Statement and any amendments and supplements thereto will comply in
all material respects with the requirements of the 1933 Act and the
rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"); (B) neither the Registration Statement nor any
amendment or supplement thereto will contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and (C) neither the Prospectus nor any amendment or supplement thereto
will include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that this
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representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Offerors by the Underwriters expressly for use in the
Registration Statement or the Prospectus, or any information contained
in any Form T-1 which is an exhibit to the Registration Statement. The
statements contained under the caption "Underwriting" in the
Prospectus constitute the only information furnished to the Offerors
in writing by the Underwriters expressly for use in the Registration
Statement or the Prospectus.
(ii) The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act, and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations")
and, when read together and with the other information in the
Prospectus, at the time the Registration Statement becomes effective
and at all times subsequent thereto up to the Closing Time, will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, in each case after
excluding any statement that does not constitute a part of the
Registration Statement or the Prospectus pursuant to Rule 412 of the
1933 Act Regulations.
(iii) KPMG Peat Marwick LLP, who are reporting upon the
audited financial statements included or incorporated by reference in
the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Offerors and, when duly executed by the Underwriters,
will constitute the valid and binding agreement of the Offerors
enforceable against the Offerors in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Guarantee Agreement, the Junior Subordinated
Debentures, the Trust Agreement and the Indenture have each been duly
authorized and when validly executed and delivered by the Company and,
in the case of the Guarantee, by the Guarantee Trustee, in the case of
the Trust Agreement, by the Trustees, and in the case of the
Indenture, by the Indenture Trustee, will constitute valid and legally
binding obligations of the Company enforceable in accordance with
their respective terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, or reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally or general equitable principles; the Junior Subordinated
Debentures are entitled to the benefits of the Indenture; and the
Guarantee Agreement, the Junior Subordinated Debentures, the Trust
Agreement and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus.
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(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), included or incorporated by
reference in the Registration Statement present fairly the
consolidated financial position of the Company and its subsidiaries as
of the dates indicated and the consolidated results of operations and
cash flows of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as otherwise stated
therein. The financial statement schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The selected financial, pro forma and statistical data
included in the Prospectus are accurate in all material respects and
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Registration
Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus. The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or earnings, business affairs, assets or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(vii) The Company is duly registered with the Office of
Thrift Supervision as a savings and loan holding company under the
Home Owners' Loan Act as amended; each subsidiary of the Company that
conducts business as a savings association is duly authorized to
conduct such business in each jurisdiction in which such business is
currently conducted, except to the extent that the failure to be so
authorized would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise; and the deposit
accounts of BankAtlantic, A Federal Savings Bank (the "Bank") are
insured by either the Savings Association Insurance Fund or Bank
Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC"),
up to the maximum allowable limits thereof. The Offerors have all such
power, authority, authorization, approvals and orders as may be
required to enter into this Agreement, to carry out the provisions and
conditions hereof and to issue and sell the Preferred Securities.
(viii) The Bank is a federally chartered savings association
duly organized, validly existing and in good standing under the laws
of the United States with corporate power and authority under such
laws to own, lease and operate its
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properties and conduct its business; the Bank is duly qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse
effect on the Bank and its subsidiaries, considered as one enterprise.
All of the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by the Company directly or
through one or more subsidiaries, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind,
except as disclosed in Note 10 to the consolidated financial
statements in the Prospectus.
(ix) Except for the Bank, the Company does not have any
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
under the 1933 Act.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under
the caption "Capitalization"; the Preferred Securities conform in all
material respects to the description thereof contained or incorporated
by reference in the Prospectus and such description conforms to the
rights set forth in the instruments defining the same.
(xi) The Preferred Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and fully paid and non-assessable; the Preferred Securities
conform, in all material respects, to the statements relating thereto
contained in the Prospectus and such description conforms, in all
material respects, to the rights set forth in the instruments defining
the same; the holders of the Preferred Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
and the issuance of the Preferred Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(xii) The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the Company
against payment therefor as described in the Prospectus, will be duly
and validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform, in
all material respects, to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time, all of
the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
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(xiii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Act with the power and authority to own, lease and operate
its properties and conduct its business as described in the
Prospectus, and the Trust has conducted no business to date, and it
will conduct no business in the future that would be inconsistent with
the description of the Trust set forth in the Prospectus; the Trust is
not a party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement and the agreements and instruments
contemplated by the Trust Agreement or described in the Prospectus;
the Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by this Agreement and the Trust
Agreement and described in the Prospectus; and the Trust is not a
party to or subject to any action, suit or proceeding of any nature.
(xiv) The issue and sale of the Preferred Securities and the
Common Securities by the Trust, the compliance by the Trust with all
of the provisions of this Agreement, the purchase of the Junior
Subordinated Debentures by the Trust, and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, loan agreement, mortgage, deed of trust or other
agreement or instrument to which the Trust is a party or by which the
Trust is bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation of the
provisions of the Trust Agreement or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Trust or any of its properties; and no consent,
approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other
governmental agency or body is required to be obtained by the Trust
for the issue and sale of the Preferred Securities and the Common
Securities by the Trust, the purchase of the Junior Subordinated
Debentures by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement and the Trust Agreement,
except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already
been obtained, or as may be required under the 1933 Act or the 1933
Act Regulations, 1934 Act or 1934 Act Regulations, state securities
laws or under the Trust Indenture Act of 1939, as amended ("TIA").
The issuance by the Company of the Guarantee and the Junior
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement, the execution, delivery and performance
by the Company of the Trust Agreement, the Junior Subordinated
Debentures, the Guarantee Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, loan agreement, mortgage, deed of trust, or other material
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of
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the property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or by-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties except in any
case for such conflicts, breaches, defaults or violations that would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business, assets or prospects of the Company and
its subsidiaries considered as one enterprise; and no consent,
approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other
governmental agency or body is required for the issue of the Guarantee
and the Junior Subordinated Debentures or the consummation by the
Company of the other transactions contemplated by this Agreement,
except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already
been obtained, or as may be required under the 1993 Act or the 1993
Act Regulations, 1934 Act or 1934 Act Regulations, state securities
laws or under the TIA.
(xv) The Trust is not, and after giving effect to the
offering and sale of the Preferred Securities will not be, an
"investment company," or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
(xvi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable, and none of the outstanding shares of capital
stock was issued in violation of the preemptive rights of any
stockholder of the Company.
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock,
excluding the regular $______ per share quarterly dividend paid on
Class B Common Stock and the regular $______ per share quarterly
dividend paid on the Class A Common Stock. Neither the Company nor the
Bank has any material liability of any nature, contingent or
otherwise, except as set forth in the Prospectus.
(xviii) Neither the Company nor the Bank is in violation of
any provision of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture,
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mortgage, loan agreement, note, lease or other agreement or instrument
to which it is a party or by which it may be bound or to which any of
its properties may be subject, except for such defaults that would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(xix) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably
be expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement; all pending legal or
governmental proceedings to which the Company or the Bank is a party
that are not described in the Prospectus, including ordinary routine
litigation incidental to its business, if decided in a manner adverse
to the Company, would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xx) There are no material contracts or documents of a
character required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement that are not described and filed as required.
(xxi) The Company and the Bank each has good and marketable
title to all properties and assets described in the Prospectus as
owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or
(B) are neither material in amount nor materially significant in
relation to the business of the Company and its subsidiaries,
considered as one enterprise; all of the leases and subleases material
to the business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or the Bank holds properties
described in the Prospectus, are in full force and effect, and neither
the Company nor the Bank has any notice of any material claim that has
been asserted by anyone adverse to the rights of the Company or the
Bank under any of the leases or subleases mentioned above, or
affecting or questioning the rights of such corporation to the
continued possession of the leased or subleased premises under any
such lease or sublease.
(xxii) Each of the Company and the Bank owns, possesses or
has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to
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operate its properties and to carry on its business as presently
conducted, and neither the Company nor the Bank has received any
notice of any restriction upon, or any notice of proceedings relating
to revocation or modification of, any such licenses, permits,
certificates, consents, orders, approvals or authorizations.
(xxiii) Except as disclosed in the Prospectus, no labor
problem exists with the employees of the Company or with employees of
the Bank or to the best knowledge of the Company, is imminent that
could materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or the Bank's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxiv) There are no persons with registration or other
similar rights to have any securities of the Company registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act; however, the Company has undertaken in
connection with the issuance of its 6 3/4% Convertible Subordinated
Debentures to take reasonable steps to ensure that the shares of
common stock issuable upon exercise thereof may be issued without a
legend restricting transfer.
(xxv) Except as disclosed in the Prospectus, the Company and
the Bank own or possess all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information
systems or procedures), trademarks, servicemarks and tradenames
(collectively, "patent and proprietary rights") currently employed by
them in connection with the business now operated by them except where
the failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs, assets or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor the Bank has received any
notice nor is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, and which infringement or conflict (if the subject of any
unfavorable decision, rule and refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxvi) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments of all
taxes due and payable in respect of such
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returns and no material deficiency has been asserted with respect
thereto by any taxing authority.
(xxvii) The Company has filed with NASD all documents and
notices required by NASD of companies that have issued securities that
are traded in the over-the-counter market and quotations for which are
reported by the Nasdaq National Market of the Nasdaq Stock Market,
Inc. ("Nasdaq Stock Market").
(xxviii) The Company and the Bank have no agreement or
understanding with any entity concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed
by the Company that is not disclosed in the Prospectus; the Company
and the Bank have no agreement or understanding with any entity
concerning the future acquisition of a controlling interest in the
Company or the Bank by any entity that is required by the 1933 Act or
the 1933 Act Regulations to be disclosed by the Company that is not
disclosed in the Prospectus.
(b) Any certificate signed by any authorized officer of the Company or
the Bank and delivered to the Underwriters or to counsel for the Underwriters
pursuant to this Agreement shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE 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, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust that amount of Initial Securities set
forth in Schedule A of the 2,000,000 Initial Securities at the purchase price
and terms set forth herein and in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional 300,000 Preferred Securities in accordance with the
terms set forth herein and in the Price Determination Agreement. The option
hereby granted will expire at 5:00 p.m. on the 30th day after the date the
Registration Statement is declared effective by the Commission (or at 5:00 p.m.
on the next business day if such 30th day is not a business day) and may be
exercised, on one occasion only, solely for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by you to the Company setting
forth the number of Option Securities as to which the Underwriters are
exercising the option and the time, date and place of payment and delivery for
the Option Securities. Such time and date of delivery (the "Option Closing
Date") shall be determined by the Underwriters but shall not be later than five
full business days after
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the exercise of said option, nor in any event prior to Closing Time, as
hereinafter defined, nor earlier than the second business day after the date on
which the notice of the exercise of the option shall have been given. If the
option is exercised as to all or any portion of the Option Securities, the
Option Securities as to which the option is exercised shall be purchased by the
Underwriters, severally and not jointly, in their respective underwriting
obligation proportions set forth in Schedule A.
(b) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., or at such other place as shall be agreed
upon by the Company and the Underwriters, at 9:30 a.m. on the third full
business day after the effective date of the Registration Statement, or at such
other time not more than seven full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being herein
called the "Closing Time"). In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Option Securities shall be
made at the above-mentioned office of Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., or
at such other place as shall be agreed upon by the Company and the Underwriters,
on the Option Closing Date as specified in the notice from the Underwriters to
the Company. Payment for the Initial Securities and the Option Securities, if
any, shall be made to the Company by wire transfer of immediately available
funds, against delivery to the Underwriters for the respective accounts of the
Underwriters of Preferred Securities to be purchased by them.
(c) Certificates for the Initial Securities to be purchased by
the Underwriters shall be in such denominations and registered in such names as
the Underwriters may request in writing at least two full business days before
the Closing Time or the Option Closing Date, as the case may be. The
certificates for the Initial Securities or the Option Securities to be purchased
will be made available in New York City for examination and packaging by the
Underwriters not later than 10:00 a.m. on the business day prior to the Closing
Time or the Option Closing Date, as the case may be.
Section 3. CERTAIN COVENANTS OF THE OFFERORS. Each of the
Offerors covenants jointly and severally with each Underwriter as follows:
(a) The Offerors will use their best efforts to cause the
Registration Statement to become effective and will notify the Underwriters
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Preferred Securities or capital
12
stock, for offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes. The Offerors will use
every reasonable effort to prevent the issuance of any such stop order or of
any order preventing or suspending such use and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement if the
Offerors have elected to rely upon Rule 430A, to the Prospectus (including
documents incorporated by reference into such prospectus or to the Prospectus)
of which the Underwriters shall not have previously been advised and have
previously been furnished a copy, or to which the Underwriters or counsel for
the Underwriters shall reasonably object.
(c) The Offerors have furnished or will furnish to you as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act) and signed copies of all
consents and certificates of experts as you may reasonably request.
(d) The Offerors will deliver or cause to be delivered to 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 Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will deliver
or cause to be delivered to each Underwriter, without charge, as soon as the
Registration Statement shall have become effective (or, if the Offerors have
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as such Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the Preferred
Securities as contemplated in this Agreement and in the Prospectus. If, at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Preferred Securities, any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Underwriters or counsel for the Offerors, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of either such
counsel, at any such time to amend the Registration
13
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements.
(f) The Offerors will use their best efforts, in cooperation
with the Underwriters, to qualify the Preferred Securities and the Junior
Subordinated Debentures, for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriters may designate
and to maintain such qualifications in effect for a period of not less than one
year from the effective date of the Registration Statement; PROVIDED, HOWEVER,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Preferred Securities
have been qualified as above provided.
(g) The Company will make generally available (within the
meaning of Rule 158) to its security holders, the Underwriters and the
Securityholders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement of the Company and
its subsidiaries (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a period of at least 12 months beginning after the
effective date of the Registration Statement but not later than the first day of
the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the sale by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of Junior Subordinated Debentures. The Company and the Bank will use the
net proceeds received by them from the sale of the Junior Subordinated
Debentures in the manner specified in the Prospectus under the caption "Use of
Proceeds".
(i) The Offerors, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Company will furnish to the Underwriters, copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports, Proxy Statements, and information
as shall be furnished by the Company to its stockholders generally.
14
(k) The Offerors will file with the Nasdaq Stock Market all
documents and notices required by the Nasdaq Stock Market of companies that have
issued securities that are traded in the over-the-counter market and quotations
for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay for the legal fees and related
filing fees to the counsel to the Underwriters to prepare one or more "blue sky"
surveys (each, a "Blue Sky Survey") for use in connection with the offering of
the Preferred Securities as contemplated by the Prospectus and a copy of such
Blue Sky Survey or surveys shall be delivered to each of the Company and the
Underwriters.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file
or transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A,
a post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the
issuance of the Preferred Securities, prepare and distribute to each of the
Underwriters and counsel to the Underwriters, a hard-bound copy of the documents
used in connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or
thirty (30) days after the date of this Agreement, whichever occurs first, incur
any material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K under the Securities Act,
except as contemplated by the Prospectus.
(p) During a period of five days from the date of the
Prospectus, neither the Trust nor the Company will, without the prior written
consent of the Underwriters, directly or indirectly, offer, sell, offer to sell,
or otherwise dispose of any Preferred Securities, any other beneficial interests
in the assets of the Trust, or any preferred securities or other securities of
the Trust or the Company which are substantially similar to the Preferred
Securities, including any guarantee of such securities. The foregoing sentence
shall not apply to any of the Preferred Securities to be sold hereunder.
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear
all costs and expenses incident to the performance of its and the Trust's
obligations under this Agreement, including (a) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, the preliminary prospectuses and
the Prospectus and any amendments or supplements thereto,
15
and the cost of furnishing copies thereof to the Underwriters, (b) the
preparation, printing and distribution of this Agreement, the Preferred
Securities and the Blue Sky Survey, (c) the issuance and delivery of the
Preferred Securities to the Underwriters, including any transfer taxes payable
upon the sale of the Preferred Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) NASD filing fees,
(f) fees and disbursements of counsel to the Underwriters in connection with the
Blue Sky Survey, (g) the qualification of the Preferred Securities under the
applicable securities laws in accordance with Section 3(f) and any filing fee
for review of the offering with the NASD, (h) the legal fees and expenses (other
than those applicable to the Blue Sky Survey) of the Underwriters' counsel (such
counsel's fees shall not exceed $____________) and general out-of-pocket
expenses of the Underwriters not to exceed $____________, (i) the fees and
expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee, in connection with the Indenture and the
Junior Subordinated Debentures; (j) the fees and expenses of the Property
Trustee and Delaware Trustee, including the fees and disbursements of counsel
for the Property Trustee and the Delaware Trustee, in connection with the Trust
Agreement and the Certificate of Trust, and (k) all other costs incident to the
performance of the Offerors' obligations hereunder.
If (i) the Closing Time does not occur on or before ____________,
1997, (ii) the Company abandons or terminates the Offering, or (iii) this
Agreement is terminated by the Underwriters in accordance with the provisions of
Section 5 or 11(a), the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, as set forth in this Section 4, including the
reasonable fees and disbursements of counsel for the Underwriters, but excluding
fees associated with the Blue Sky Survey, which shall be paid directly to the
Underwriters' counsel.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Preferred
Securities that they have respectively agreed to purchase pursuant to this
Agreement are subject to the accuracy of the representations and warranties of
the Offerors contained herein or in certificates of the officers or trustees of
the Offerors or any subsidiary delivered pursuant to the provisions hereof, to
the performance by the Offerors of their obligations hereunder and to the
following further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing; at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriters' knowledge or the knowledge of the Offerors
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriters. If the Offerors have elected to
rely upon Rule 430A, a prospectus containing
16
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 43OA).
(b) At the Closing Time, you shall have received:
(i) The favorable opinion, dated as of Closing Time, of
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., counsel for
the Company, in form and substance reasonably satisfactory to counsel
for the Underwriters, substantially in the form set forth in Exhibit
C.
(ii) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel for the Offerors,
in form and substance satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit D.
(iii) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, counsel for the Indenture Trustee, in form
and substance satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit E.
(iv) The favorable opinion, dated as of Closing Time, of
Xxxxxxx, Xxxxx, Xxxxxx & Xxxxx, P.C., counsel for the Underwriters, in
form and substance satisfactory to the Underwriters.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, upon opinions of other counsel, who shall be counsel satisfactory
to counsel for the Underwriters (the Underwriters agree and acknowledge that
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx and Xxxxxxxxx, P.A. and Xxxxxxx, Xxxxx,
Xxxxxx & Xxxxx, P.C. will rely on the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx with
respect to matters of Delaware law), in which case the opinion shall state that
counsel believes that you and your counsel are entitled to so rely. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company, the Bank and the Trust and certificates of public officials.
(c) At the Closing Time, (i) the Registration Statement and
the Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations, the Offerors shall
have complied in all material respects with Rule 430A (if they shall have
elected to rely thereon) and neither the Registration Statement nor the
Prospectus, as they may then be amended or supplemented, shall contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
there shall not have been, since the respective dates as of which information is
given in the Registration Statement,
17
any material adverse change in the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Offerors, threatened against
the Company or any subsidiary or the Trust that would be required to be set
forth in the Prospectus other than as set forth therein and no proceedings shall
be pending or, to the knowledge of the Offerors, threatened against the Offerors
or any subsidiary before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding could
reasonably be expected to materially adversely affect the condition (financial
or otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, other than as set
forth in the Prospectus, (iv) each of the Offerors shall have complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, (v) the other representations and warranties of
the Offerors set forth in Section l(a) shall be accurate in all material
respects as though expressly made at and as of the Closing Time, and (vi) no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose been initiated or to the best
knowledge of the Offerors threatened by the Commission. At the Closing Time, the
Underwriters shall have received a certificate of the Chairman or the President,
and the Chief Financial Officer or Controller, of the Company, dated as of the
Closing Time, to such effect.
(d) At the time that this Agreement is executed by the
Company, you shall have received from KPMG Peat Marwick LLP a letter or letters,
dated such date, in form and substance satisfactory to you, confirming that they
are independent certified public accountants with respect to the Company within
the meaning of the 1933 Act and the published 1933 Act Regulations, and stating
in effect that:
With respect to the Company:
(i) in their opinion, the consolidated financial statements
as of December 31, 1996 and 1995, and for each of the years in the
three year period ended December 31, 1996 and the related financial
statement schedules, if any, included or incorporated by reference in
the Registration Statement and the Prospectus and covered by their
opinions included therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
published 1933 Act Regulations;
(ii) on the basis of a reading of the minutes of all meetings
of the stockholders of the Company and the Bank, of the Board of
Directors of the Company and the Bank and of the Audit and Executive
Committees of the Board of Directors of the Bank since December 31,
1996, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, and
18
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any increase in
notes or subordinated debentures payable, advances from the
Federal Home Loan Bank, real estate owned, or allowance for
loan losses of the Company and its consolidated subsidiaries
or any decrease in total assets, total deposits or
stockholders' equity of the Company and its consolidated
subsidiaries or any increase in the number of outstanding
shares of Class A Common Stock or Class B Common Stock of the
Company and its consolidated subsidiaries, in each case as
compared with amounts shown in the financial statements at
December 31, 1996 included in the Registration Statement; or
(B) for the period from December 31, 1996 to a
specified date not more than three days prior to the date of
this Agreement, there was any decrease in consolidated net
interest income, non-interest income or net income or the
(split-adjusted) total or fully diluted per share amounts of
net income or any increase in the consolidated provision for
loan losses or non-interest expense, in each case as compared
with the comparable period in the preceding year.
(iii) in addition to the procedures referred to in clause
(ii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement (including the Selected Consolidated Financial Data) (having
compared such items with, and have found such items to be in agreement
with, the financial statements of the Company or general accounting
records of the Company, as applicable, which are subject to the
Company's internal accounting controls or other data and schedules
prepared by the Company from such records).
(e) At the Closing Time, the Underwriters shall have received
from KPMG Peat Marwick LLP letters, in form and substance satisfactory to the
Underwriters and dated as of the Closing Time, to the effect that they reaffirm
the statements made in the letter(s) furnished pursuant to Section 5(d), except
that the specified date referred to shall be a date not more than two days prior
to the Closing Time.
(f) At the Closing Time, counsel for the Underwriters shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Preferred Securities as contemplated in this Agreement and the matters
referred to in Section 5(c) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Offerors, the performance of any of the covenants of the Offerors, or the
fulfillment of any of the conditions herein contained; all proceedings taken by
the Company
19
at or prior to the Closing Time in connection with the authorization, issuance
and sale of the Preferred Securities and the Junior Subordinated Debentures as
contemplated in this Agreement shall be satisfactory in form and substance to
the Underwriters and to counsel for the Underwriters.
(g) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(h) The Company shall have paid, or made arrangements
satisfactory to the Underwriters for the payment of, all such expenses as may be
required by Section 4 hereof.
(i) In the event the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the several Underwriters to purchase the Option
Securities that they shall have respectively agreed to purchase shall be subject
to the accuracy of the representations and warranties of the Offerors contained
herein and of the statements in any certificates furnished by the Offerors
hereunder as of such Option Closing Date (as if made on such date), to the
performance by the Offerors of their obligations hereunder and to the receipt by
you on the Option Closing Date of:
(1) A certificate, dated the Option Closing Date, of
the Chairman or the President and the Chief Financial Officer or
Controller of the Company confirming that the certificate delivered on
the Closing Time pursuant to Section 5(c) hereof remains true as of the
Option Closing Date;
(2) The favorable opinion of Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., counsel for the Company, addressed
to you and dated the Option Closing Date, in form satisfactory to
Xxxxxxx, Spidi, Xxxxxx & Xxxxx, P.C., your counsel, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof;
(3) The favorable opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel for the Offerors and counsel for the
Indenture Trustee, addressed to you and dated the Option Closing Date,
in form satisfactory to Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., your
counsel, relating to the Option Securities and otherwise to the same
effect as the opinion required by Section 5(b) hereof;
20
(4) The favorable opinion of Xxxxxxx, Xxxxx, Xxxxxx &
Xxxxx, P.C., dated the Option Closing Date, relating to the Option
Shares and otherwise to the same effect as the opinion required by
Section 5(b) hereof; and
(5) Letters from KPMG Peat Marwick LLP addressed to
the Underwriters and dated the Option Closing Date, in form and
substance satisfactory to the Underwriters and substantially the same
in form and substance as the letters furnished to the Underwriters
pursuant to Section 5(d) hereof.
(j) The Preferred Securities, the Guarantee and the Junior
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration, under
the Blue Sky Laws of such jurisdictions as shall have been reasonably specified
by the Underwriters and the offering contemplated by this Agreement shall have
been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriters on notice to the Offerors at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7, and 10
shall remain in effect.
Section 6. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Underwriter, officers, directors, employees, agents, and counsel of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to amounts incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Preferred Securities under the "blue sky" or securities
laws thereof or filed with
21
the Commission or any securities exchange; unless such statement or omission or
alleged statement or omission was made in reliance upon and in conformity with
written information concerning that Underwriter, the Underwriting Agreement or
the compensation of the Underwriters furnished to the Company by or on behalf of
the Underwriters expressly for inclusion in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or in any application, as the case may be, or (ii) any breach of any
representation, warranty, covenant, or agreement of the Company contained in the
Underwriting Agreement. The foregoing indemnification with respect to any
preliminary prospectus shall not inure to the benefit of the Underwriters if the
person asserting any such losses, claims, damages or liabilities purchased
Preferred Securities and a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriters to such
person, if such is required by law, in connection with the written confirmation
of the sale of such Preferred Securities to such person and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability, provided, that the Company delivered the
Prospectus, as amended or supplemented, to the Underwriters on a timely basis to
permit such delivery or sending. For purposes of this section, the term
"expense" shall include, but not be limited to, counsel fees and costs, court
costs, out-of-pocket costs and compensation for the time spent by any of the
Underwriters' directors, officers, employees and counsel according to his or her
normal hourly billing rates. The indemnification provisions shall also extend to
all affiliates of any of the Underwriters, their respective directors, officers,
employees, legal counsel, agents and controlling persons within the meaning of
the federal securities laws. The foregoing agreement to indemnify shall be in
addition to any liability the Company may otherwise have to the Underwriters or
the persons entitled to the benefit of these indemnification provisions.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Offerors, their directors, officers who signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) above, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) or any application in reliance upon and in conformity with written
information about that Underwriter, the Underwriting Agreement, or the
compensation of that Underwriter, furnished to either of the Offerors by that
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or in any application.
(c) An indemnified party shall give prompt notice to
the indemnifying party if any action, suit, proceeding or investigation is
commenced in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party
22
shall not relieve the indemnifying party from its obligations to indemnify
hereunder, except to the extent that the indemnifying party has been prejudiced
in any material respect by such failure. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party may assume the defense
of such action, including the employment of counsel satisfactory to the
indemnified parties and payment of all expenses of the indemnified party in
connection with such action. Such indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have promptly employed counsel satisfactory
to such indemnified party or parties or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other indemnified parties which are different from or
additional to those available to one or more of the indemnifying parties, in any
of which events such fees and expenses shall be borne by the indemnifying party
and the indemnifying party shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties. The Company shall be
liable for any settlement of any claim against any Underwriter (or its
directors, officers, employees, affiliates or controlling persons), made with
the Company's written consent, which consent shall not be unreasonably withheld.
The Company shall not, without the written consent of any Underwriter, settle or
compromise any claim against it based upon circumstances giving rise to an
indemnification claim against the Company hereunder unless such settlement or
compromise provides that such Underwriter and the other indemnified parties
shall be unconditionally and irrevocably released from all liability in respect
to such claim.
(d) In order to provide for just and equitable
contribution, if a claim for indemnification pursuant to these indemnification
provisions is made but it is found in a final judgment by a court that such
indemnification may not be enforced in such case, even though the express
provisions hereof provide for indemnification in such case, then the Company, on
the one hand, and the Underwriters, on the other hand, shall contribute to the
amount paid or payable by such indemnified persons as a result of such loss,
liability, claim, damage and expense in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the underwriting, and also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements, acts or omissions which resulted in such
loss, liability claim, damage and expense, and any other relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, an Underwriter shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
commission paid by the Company to such Underwriter with respect to the Preferred
Securities purchased by that Underwriter.
23
(e) The indemnity and contribution agreements
contained herein are in addition to any liability which the Company may
otherwise have to the Underwriters.
(f) Neither termination nor completion of the
engagement of the Underwriters nor any investigation made by or on behalf of the
Underwriters shall effect the indemnification obligations of the Company or the
Underwriters hereunder, which shall remain and continue to be operative and in
full force and effect.
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. The representations, warranties, indemnities, agreements and
other statements of the Offerors or its officers or trustees set forth in or
made pursuant to this Agreement will remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Offerors or
any Underwriter or any controlling person and will survive delivery of and
payment for the Preferred Securities.
Section 8. OFFERING BY THE UNDERWRITERS. The Trust and the
Company are advised by the Underwriters that the Underwriters propose to make a
public offering of the Preferred Securities, on the terms and conditions set
forth in the Registration Statement from time to time as and when the
Underwriters deem advisable after the Registration Statement becomes effective.
Because the NASD is expected to view the Preferred Securities as interests in a
direct participation program, the offering of the Preferred Securities is being
made in compliance with the applicable provisions of Rule 2810 of the NASD's
Conduct Rules.
Section 9. TERMINATION OF AGREEMENT.
(a) You may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' reasonable judgment, impracticable to
market the Preferred Securities or enforce contracts for the sale of the
Preferred Securities, or (iii) if trading in any securities of the Company has
been suspended by the Commission or the National Association of Securities
Dealers, Inc., or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority with
appropriate jurisdiction over such matters, or (iv) if a banking moratorium has
been declared by either federal or Florida authorities, or (v) if there shall
have been such material and substantial change in the market for securities in
general or
24
in political, financial or economic conditions as in your reasonable judgment
makes it inadvisable to proceed with the Offering, sale and delivery of the
Preferred Securities on the terms contemplated by the Prospectus, or (vi) if you
reasonably determine (which determination shall be in good faith) that there has
not been satisfactory disclosure of all relevant financial information relating
to the Offerors in the Offerors' disclosure documents and that the sale of the
Preferred Securities is unreasonable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6 and 7 shall remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Initial Securities that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted Securities"), you shall have the 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 set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of Initial
Securities, the non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective Initial Securities
underwriting obligation proportions bear to the underwriting obligations of all
non-defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of Initial Securities,
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 that does not result in a
termination of this Agreement, either you or the Offerors shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or 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
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered,
25
mailed or transmitted by any standard form of telecommunication. Notices shall
be addressed as follows:
If to the Underwriters:
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Senior Vice President
Xxxxxx Xxxxxxx Incorporated
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Managing Director
with a copy to:
Xxxx X. Xxxxx, Esq.
Xxxxxxx, Xxxxx, Xxxxxx & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Suite 000 Xxxx
0000 X Xxxxxx, X.X.
Washington, D.C. 20005
If to the Company or the Trust:
BankAtlantic Bancorp, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Chief Executive Officer
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Section 12. PARTIES. This Agreement herein set forth is made
solely for the benefit of the Underwriters, the Trust and the Company and, to
the extent expressed, any person controlling the Trust, the Company or the
Underwriters, and the directors of the Company, or trustees of the Trust, their
respective officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and subject to the
provisions of Section 10, no other person shall acquire or have any right under
or by virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser,
26
as such purchaser, from the Underwriters of the Preferred Securities. All of the
obligations of the Underwriters hereunder are several and not joint.
Section 13. ARBITRATION. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in Miami, Florida before one or three arbitrators, each of whom shall
be knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject to the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 14. GOVERNING LAW AND TIME. This Agreement shall be
governed by the laws of the State of New Jersey. Specified times of the day
refer to New York City time.
Section 15. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
27
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
BBC CAPITAL TRUST I
By:
--------------------------------
Name:
Title: Administrative Trustee
BANKATLANTIC BANCORP, INC.
By:
--------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., INC.
By:
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX XXXXXXX INCORPORATED
By:
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
28
SCHEDULE A
AMOUNT OF PERCENTAGE OF INITIAL
INITIAL SECURITIES SECURITIES
UNDERWRITER TO BE PURCHASED TO BE PURCHASED
----------- ------------------ ---------------------
Xxxx, Xxxx & Co, Inc.................................... %
Xxxxxx Xxxxxxx Incorporated.............................
TOTAL.............................................. 2,000,000 100%
========= ===
29
EXHIBIT A
BBC CAPITAL TRUST I
(a Delaware business trust)
2,000,000 Preferred Securities
___% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
PRICE DETERMINATION AGREEMENT
____________, 1997
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Xxxxxx Xxxxxxx Incorporated
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among BBC Capital Trust I, a Delaware business
trust, (the "Trust"), BankAtlantic Bancorp, Inc. (the "Company" and together
with the Trust, the "Offerors") and the Underwriters named above (the
"Underwriters"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Trust, subject to the terms and conditions set forth
therein, of 2,000,000 shares, subject to a 300,000 adjustment (to cover
over-allotments, if any), of the _____% Cumulative Trust Preferred Securities of
the Trust (the "Preferred Securities"). This Agreement is the Price
Determination Agreement referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors agree
with the Underwriters as follows:
1. The public offering price per Preferred Security shall be
$25.
1
2. The purchase price for the Preferred Securities to be paid
by the Underwriters shall be $25 per Preferred Security.
3. The commission per Preferred Security to be paid by the
Company to the Underwriters for their commitments hereunder shall be
$_____ per Preferred Security.
4. The interest rate on the Preferred Securities shall be
_____% per annum.
The Offerors represent and warrant to each of the Underwriters that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
As contemplated by Section 2 of the Underwriting Agreement, attached as
Schedule A is a list of the Underwriters, which shall be a part of the Agreement
and the Underwriting Agreement.
This Agreement shall be governed by the laws of the State of New
Jersey.
2
If the foregoing is in accordance with the understanding of the
Underwriters of the agreement between the Underwriters and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
BBC CAPITAL TRUST I
By:
---------------------------------
Name:
Title: Administrative Trustee
BANKATLANTIC BANCORP, INC.
By:
---------------------------------
Xxxx X. Xxxxx
Chairman of the Board
Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., INC.
By:
----------------------------
Xxxxx X. Xxxxxx
Senior Vice President
XXXXXX XXXXXXX INCORPORATED
By:
----------------------------
Xxxxxxx Xxxxxxx
Managing Director
3
EXHIBIT B
BBC CAPITAL TRUST I
2,000,000 PREFERRED SECURITIES
_____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
SELECTED DEALER AGREEMENT
___________ __, 1997
Ladies and Gentlemen:
BBC Capital Trust I, a Delaware business trust (the "Trust") and
BankAtlantic Bancorp, Inc., a Florida corporation (the "Company" and together
with the Trust, the "Offerors"), are offering for sale to the public 2,000,000
shares, subject to a 300,000 share adjustment (to cover over-allotments, if any)
of the Trust's __% Cumulative Trust Preferred Securities (the "Preferred
Securities").
1. The Underwriters named in the enclosed Prospectus have severally
agreed to purchase from the Trust 2,000,000 Preferred Securities and have an
option to purchase from the Trust any or all of the 300,000 Preferred Securities
to cover over-allotments, if any. The purchase is subject to the terms of an
agreement among the Underwriters and the Offerors (the "Underwriting
Agreement"). The Preferred Securities are more fully described in the
Prospectus. One or more of the Underwriters, are severally offering, subject to
the terms and conditions stated herein and in the Underwriting Agreement, a
portion of the Preferred Securities to certain dealers (the "Selling Group") as
principals, subject to the terms and conditions stated herein and in the
Underwriting Agreement, subject to modification or cancellation of the offering
without notice, at the initial public offering price per Preferred Security
hereinafter set forth and on the cover page of the Prospectus (the "Authorized
Public Offering Price") less concessions (the "Selling Concessions").
Authorized Public Offering
Price: $25 per Preferred Security
Dealer's Selling Concession: $____ per Preferred Security, payable or
allowable as set forth below.
1
Reallowances: You may reallow not in excess of $____ per
Preferred Security as a Selling Concession
to dealers who are members in good standing
of the National Association of Securities
Dealers, Inc. (the "NASD").
Delivery and Payment: Payment for the Preferred Securities sold to
you hereunder is to be made on ____________,
1997, or such other date as we advise you
and in such manner as we advise you, against
delivery of the Preferred Securities, which
shall be paid for in full at the applicable
Authorized Public Offering Price or, if we
so advise you, at such price less the
applicable Selling Concession. If payment is
at the applicable Authorized Public Offering
Price, the applicable Selling Concession
will be paid to you upon termination of this
Agreement.
Termination: This Agreement will terminate 30 days from
its date unless sooner terminated or
extended by us.
2. Members of the Selling Group may immediately offer Preferred
Securities for sale and take orders therefor at the Authorized Public Offering
Price, subject to confirmation and allotment by us. We, in turn, are prepared to
receive orders subject to confirmation and allotment by us. We reserve the right
to reject any order in whole or in part or to allot less than the number of
Preferred Securities applied for. Orders transmitted by telephone should be
confirmed by letter or facsimile transmission.
3. By becoming a member of the Selling Group, you agree (a) to take and
pay for Preferred Securities allotted and confirmed to you, (b) not to use any
such Preferred Securities to reduce or cover any short position you may have,
(c) to comply with Rules 2730, 2740, and 2750 and related interpretive material
of the NASD Conduct Rules, and (d) upon our request, to advise us of the number
of Preferred Securities purchased from us hereunder remaining unsold by you and
to resell to us any and all such unsold Preferred Securities at the prices
stated above, less all of such part of the concession allowed you as we may
determine.
4. It is assumed that the Preferred Securities sold by you will be
effectively placed for investment. If we purchase in the open market, for the
account of any Underwriter, Preferred Securities sold to you and not effectively
placed for investment, we may not allow you the dealer's concession on the
Preferred Securities so purchased or, if such concession has theretofore been
allowed you, you agree to pay it to us on demand.
2
5. Each Underwriter has consented that each of us, for our own account
as one of the Underwriters, in our discretion, may make purchases and sales of
the Preferred Securities and, in arranging for sales, to over-allot. You agree
that until termination of this Agreement, you will not make purchases or sales
of any Preferred Securities except (a) pursuant to this Agreement, (b) purchases
authorized by us, or (c) in the ordinary course of business as broker or agent
for a customer pursuant to an unsolicited order.
6. Additional copies of the Prospectus will be supplied to you in
reasonable quantity upon request.
7. The Preferred Securities are offered by us for delivery when, as,
and if sold and accepted by the Underwriters and subject to the terms stated
herein and in the Prospectus, to our right to vary the concession and terms of
the offering after their release for public sale, to the approval of counsel as
to legal matters and to withdrawal, cancellation or modification of the offer
without notice.
8. You represent that you are a member in good standing of the NASD or,
if a foreign dealer, that you will conform to the Conduct Rules of the NASD in
making sales in the United States. You represent that you will comply with the
"Free-Riding and Withholding" interpretation (IM-2110-1) of the Board of
Governors of the NASD. You are not authorized to give any information or make
any representations other than as contained in the Prospectus, or to act as
agent for any Underwriter or for us. Nothing will constitute the Selling Group
as an association or other separate entity or partners with the Underwriters,
with us, or with each other, but you will be responsible for your share of any
liability or expense based on any claim to the contrary. Neither we nor any
Underwriter will be under any liability to you, except for obligations expressly
assumed in this Agreement and any liabilities under the Securities Act of 1933,
as amended. No obligations on our part will be implied or inferred herefrom.
9. Neither we nor any of the other Underwriters will have any
responsibility with respect to the right of any dealer to sell the Preferred
Securities in any jurisdiction, notwithstanding any information that we may
furnish in that connection. Upon application to us, you will be informed as to
the states in which we have been advised by counsel that the Preferred
Securities have been qualified for sale or are exempt under the respective Blue
Sky or securities laws of such states. You agree that you will not offer or sell
such Preferred Securities in violation of any applicable law including, but not
limited to, the Blue Sky or securities laws of any state or jurisdiction in
which such Preferred Securities are offered or sold by you.
10. This Agreement will be governed and construed in accordance with
the laws of the State of New Jersey.
3
If you desire to become a member of the Selling Group, please advise us
to that effect immediately by facsimile transmission ((000) 000-0000, attention
________________) and sign and return the enclosed copy of this letter to Xxxx,
Xxxx & Co., Inc., 00 Xxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000.
Very truly yours,
XXXX, XXXX & CO., INC.
By:
---------------------------------
Name:
Title:
XXXXXX XXXXXXX INCORPORATED
By:
---------------------------------
Name:
Title:
Confirmed as of the above date:
---------------------------------
(Firm Name)
---------------------------------
(Street Address)
---------------------------------
(City, State and Zip Code)
By:------------------------------
---------------------------------
(Title)
4
EXHIBIT C
The opinion of special counsel to the Company to be delivered
pursuant to Section 5(b)(i) of the Underwriting Agreement shall be substantially
to the effect that:
1. The Company is a corporation organized, validly existing and in good
standing under the laws of the State of Florida with corporate power and
authority under such laws to own, lease and operate its properties and conduct
its business as described in the Prospectus.
2. To such counsel's knowledge, the Company is qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered as one
enterprise.
3. The Bank is chartered under the laws of the United States to
transact the business of a federal savings bank and its charter is in full force
and effect with the Office of Thrift Supervision, with corporate power and
authority under such laws to own, lease and operate its properties and conduct
its business as now being conducted.
4. The deposit accounts of the Bank are insured by either the Savings
Association Insurance Fund or the Bank Insurance Fund of the FDIC up to the
maximum amount allowable under applicable law.
5. To such counsel's knowledge, the Bank is qualified to transact
business as a foreign corporation in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to so
qualify would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
6. The Company is registered as a savings & loan holding company under
the Home Owners' Loan Act, as amended.
7. None of the outstanding shares of capital stock of the Company and
none of the Securities was issued in violation of the preemptive rights of any
stockholder of the Company.
8. The authorized capital stock of the Company at December 31, 1996 is
as set forth in the Prospectus under the heading "Capitalization".
5
9. To such counsel's knowledge, all of the outstanding shares of
capital stock of the Bank have been authorized and validly issued and are fully
paid and non-assessable; all of such shares are owned by the Company, to such
counsel's knowledge, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind, except as disclosed in Note 10
to the consolidated financial statements in the Prospectus; none of such shares
was issued in violation of the preemptive rights of any stockholder of the Bank.
10. The Company and the Trust each has full corporate power and
authority to execute, deliver, and perform the Underwriting Agreement and to
issue, sell, and deliver the Preferred Securities to be sold by it to the
Underwriters as provided herein; the Underwriting Agreement has been duly
authorized, executed and delivered by the Company and the Trust, and constitutes
a legal, valid, and binding obligation of each of the Company and the Trust and
is enforceable against each of the Company and the Trust in accordance with its
terms, except as enforceability of this Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting creditors'
rights generally, and by equitable principles limiting the right to specific
performance or other equitable relief and except as the obligations of the
Company under the indemnification and contribution provisions of Section 6 of
the Agreement may be limited by laws or unenforceable as against public policy,
as to which no opinion is expressed.
11. The Trust Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law).
12. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law).
13. The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act, and is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws affecting creditors'
rights generally, general equity principles (whether considered in a proceeding
in equity or at law).
14. The Junior Subordinated Debentures have been duly authorized,
executed and delivered by the Company and when duly authenticated in accordance
with the Indenture
6
and delivered and paid for in accordance with the Underwriting Agreement, will
be valid and binding obligations of the Company, entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, readjustment of debt, moratorium,
fraudulent conveyance or similar laws affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law).
15. The Trust is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in Investment Company Act
of 1940, as amended.
16. The statements set forth in the Registration Statement under the
captions "Regulation and Supervision," "Description of the Preferred
Securities," "Description of the Junior Subordinated Debentures," "Description
of the Guarantee" and "Relationship Among the Preferred Securities, the Junior
Subordinated Debentures and the Guarantee," to the extent that they constitute
matters of law or legal conclusions, have been reviewed by such counsel and are
correct in all material respects.
17. The statements of law or legal conclusions and opinions set forth
in the Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
18. The Registration Statement is effective under the 1933 Act; any
required filing of the Prospectus or any supplement thereto pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b); to such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened under the 1933 Act.
19. The Registration Statement (including the Rule 430A Information, if
applicable) and the Prospectus, excluding the documents incorporated by
reference therein, and each amendment or supplement thereto (except for the
financial statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need express no opinion), as of
their respective effective or issue dates, comply or complied as to form in all
material respects to the applicable requirements of the 1933 Act and the 1933
Act Regulations.
20. To such counsel's knowledge, there are no pending or threatened
legal or governmental proceedings, required under the 1933 Act and the 1933 Act
Regulations to be described in the Prospectus that are not described as
required, other than litigation incidental to the business of the Company or the
Bank which is, considered in the aggregate, not material to the Company and its
subsidiaries, considered as one enterprise,
7
and to such counsel's knowledge, there are no material contracts or documents
of a character required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as required.
21. No approval, authorization, consent, registration, qualification or
other order of any public board or body is required in connection with the
execution and delivery of this Agreement, the Trust Agreement, the Guarantee
Agreement, and the Indenture or the issuance and sale of the Preferred
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, the Trust Agreement, the Guarantee Agreement,
or the Indenture, except such as have been obtained under the Securities Act,
the Exchange Act and the Trust Indenture Act or such as may be required under
the blue sky or securities laws of various states in connection with the
offering and sale of the Preferred Securities (as to which such counsel need
express no opinion).
22. The execution and delivery of this Agreement, the Trust Agreement,
the Guarantee Agreement, and the Indenture, the issuance and sale of the
Preferred Securities and the Junior Subordinated Debentures, the compliance by
the Company with the provisions of the Preferred Securities, the Junior
Subordinated Debentures, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with or
constitute a breach of, or default under, the articles of incorporation or
by-laws of the Company or a breach or default under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument known to such counsel
to which either the Company or any Subsidiary is a party or by which either of
them or any of their respective properties may be bound except for such breaches
as would not have a material adverse effect on the Company and its Subsidiaries
considered as one enterprise, nor will such action result in a violation on the
part of the Company or any Subsidiary of any applicable law or regulation or of
any administrative, regulatory or court decree known to such counsel.
Counsel will supplementally provide a written statement that such
counsel has participated in the preparation of the Registration Statement and
Prospectus and has reviewed the documents incorporated by reference in the
Prospectus and no facts have come to the attention of such counsel to lead it to
believe (A) that the Registration Statement (including the Rule 430A
Information, if applicable) or any amendment thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (B) that the Prospectus or any amendment or supplement thereto (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or
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includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading or (C) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data contained therein or omitted
therefrom, as to which such counsel need express no opinion, and except to the
extent that any statement therein is modified or superseded in the Prospectus),
as of the dates they were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
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EXHIBIT D
The opinion of counsel, as special Delaware counsel to the Company and
the Trust to be delivered pursuant to Section 5(b)(ii) of the Underwriting
Agreement shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801 et seq. (the "Delaware Act"), and all filings required under the
laws of the State of Delaware with respect to the creation and valid existence
of the Trust as a business trust have been made.
2. Under the Delaware Act and Trust Agreement the Trust has the trust
power and authority to own its property and to its conduct its business, all as
described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of
the Company and the Property Trustee and the Delaware Trustee, and is
enforceable against the Company and the Trustees, in accordance with its terms.
4. Under the Delaware Act and the Trust Agreement, the Trust has the
trust power and authority to execute and deliver, and to perform its obligations
under, the Underwriting Agreement and to issue and perform its obligations under
the Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the qualifications set
forth herein, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement. The
Holders, as beneficial owners of the Trust, will be entitled to the same
limitations of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note that the Holders may be obligated pursuant to the Trust
Agreement (i) to provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges of Preferred
Securities Certificates and the issuance of replacement Preferred Securities
Certificates, and (ii) to 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.
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7. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and Common Securities is not subject to preemptive rights.
8. The Common Securities have been duly authorized by the Trust
Agreement and are duly and validly issued undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement.
9. The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the Junior Subordinated
Debentures, the execution, delivery and performance by the Trust of the
Underwriting Agreement, the consummation by the Trust of the transactions
contemplated by the Underwriting Agreement and the compliance by the Trust with
its obligations thereunder will not violate (i) any of the provisions of the
Certificate of Trust or the Trust Agreement or (ii) any applicable Delaware law
or administrative regulation.
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EXHIBIT E
The opinion of counsel to the Trust Company to be delivered pursuant to
Section 5(b)(iii) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Trust Company is duly incorporated and is validly existing in
good standing as a banking corporation with trust powers under the laws of the
State of Delaware.
2. The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee Agreement, and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to
execute and deliver the Trust Agreement, and has taken all necessary corporate
action to authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly
executed and delivered by the Indenture Trustee and the Guarantee Trustee,
respectively, and constitutes a legal, valid and binding obligation of the
Indenture Trustee and the Guarantee Trustee, respectively, enforceable against
the Indenture Trustee and the Guarantee Trustee, respectively in accordance with
its respective terms, except that certain payment obligations may be enforceable
solely against the assets of the Trust and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, liquidation,
fraudulent conveyance and transfer or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and by the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
6. The Junior Subordinated Debentures delivered on the date hereof have
been duly authenticated by the Indenture Trustee in accordance with the terms of
the Indenture.
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