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EXHIBIT 1
DRAFT OF OCTOBER 7, 1998
UFH CAPITAL TRUST I
(A DELAWARE BUSINESS TRUST)
___________ PREFERRED SECURITIES
_____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $____ PER PREFERRED SECURITY)
AND
UNITED FINANCIAL HOLDINGS, INC.
___________ SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
__________, 1998
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
UFH Capital Trust I (the "Trust"), a statutory business 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 United Financial Holdings, Inc., a Florida corporation (the
"Company") as depositor of the Trust and as guarantor (hereafter the Trust and
the Company are referred to collectively as the "Offerors"), hereby confirm
their agreement (the "Agreement") with Xxxxxxx X. Xxxxx & Co. (the
"Underwriter"), with respect to the issue and sale by the Trust and the
purchase by the Underwriter of:
(a) ___________ (the "Initial Trust Securities") of the Trust's _____%
Cumulative Trust Preferred Securities (the "Preferred Securities"); and
(b) __________ shares (the "Initial Company Shares") of the Common
Stock, par value $.01 per share, of the Company ("Common Stock") issued by the
Company.
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The Initial Trust Preferred Securities and the Initial Company Shares
are collectively referred to as the "Initial Securities." The Trust and the
Company also propose to issue and sell to the Underwriter, at the Underwriter's
option, up to an additional _________ Preferred Securities (the "Trust Option
Securities") and up to an additional ________ shares of Common Stock (the
"Company Option Securities" and collectively with the Trust Option Securities,
the "Option Securities") as set forth herein. The term "Preferred Securities"
as used herein, unless indicated otherwise, shall mean the Initial Trust
Preferred Securities and the Trust Option Securities. The term "Company Shares"
as used herein, unless indicated otherwise, shall mean the Initial Company
Shares and the Company Option Securities.
The Preferred Securities and the Trust Common Securities (as defined
herein) are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement dated as of _________, 1998 (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 _________________, _________________
and _________________ (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 _________, 1998 (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 the
Indenture dated as of _________, 1998 (the "Indenture"), between the Company
and the Trust Company, as trustee (the "Indenture Trustee"). The Company has
agreed to pay all costs, expenses and liabilities of the Trust payable to third
parties, with certain exceptions, pursuant to the Agreement as to Expenses and
Liabilities, dated as of _________, 1998 between the Company and the Trust (the
"Expense Agreement"). 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 Common Securities (the "Trust 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 Company Shares and the
Preferred Securities, the purchase price to be paid by the Underwriter for the
Company Shares and the Preferred Securities, the commission per Company Share
and Preferred Security, to be paid by the Company to the Underwriter and the
rate of interest to be paid on the Preferred Securities shall be agreed upon by
the Company and the Underwriter, and such agreement shall be set forth in a
separate written instrument substantially in the form of Exhibit A hereto (the
"Price Determination Agreement"). The Price Determination Agreement may take
the form of an exchange of any standard form of written telecommunication
between the Company and the Underwriter and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Company
Shares and
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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 SB-2 (File Nos.
_________ and ___________) covering the registration of the Company Shares, the
Preferred Securities, the Guarantee and the Junior Subordinated Debentures
under the Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus or prospectuses, and, if such registration
statement has not become effective, the Company will prepare and file, prior to
the effective date of such registration statement, an amendment to such
registration statement, including a final prospectus. Each prospectus used
before the time such registration statement becomes effective is herein called
a "preliminary prospectus." Such registration statement, including the exhibits
thereto and the documents incorporated by reference therein at the time it
becomes effective, is herein called the "Registration Statement," and the
prospectus, including the documents incorporated by reference therein pursuant
to Form SB-2 under the 1933 Act, included in the Registration Statement at the
time it becomes effective is herein called the "Prospectus," except that if any
revised prospectus provided to the Underwriter by the Company for use in
connection with the offering of the Company Shares and the Preferred Securities
differs from the prospectus included in the Registration Statement at the time
it becomes effective (whether or not such prospectus is required to be filed
pursuant to Rule 424(b)), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first furnished to the Underwriter for
such use.
The Company understands that the Underwriter propose to make a public
offering of the Company Stock and the Preferred Securities (the "Offering") as
soon as possible after the Registration Statement becomes effective. The
Underwriter may assemble and manage a selling group of broker-dealers that are
members of the National Association of Securities Dealers, Inc. ("NASD") to
participate in the solicitation of purchase orders for the Company Stock and
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 the Underwriter that:
(i) The Company meets the requirements for use of Form SB-2
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below and with respect to Option Securities,
up to the Date of Delivery referred to below, (A) the Registration
Statement and any amendments and supplements thereto will comply in
all material respects with the requirements of the 1933 Act and the
rules and regulations of the Commission under
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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, in light of the circumstances under which they
were made, not misleading; and (C) neither the Prospectus nor any
amendment or supplement thereto will include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that this representation
and warranty does not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Offerors by the Underwriter expressly for use in the
Registration Statement or the Prospectus, or any information
contained in any Form T-1, which is an exhibit to the Registration
Statement. The statements contained under the caption "Underwriting"
in the Prospectus constitute the only information furnished to the
Offerors in writing by the Underwriter expressly for use in the
Registration Statement or the Prospectus. The Commission has not
issued any order preventing or suspending the use of any preliminary
prospectus or Prospectus.
(ii) The Prospectus complies in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, 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) Xxxxx Xxxxxxxx LLP, who are reporting upon the audited
financial statements included or incorporated by reference in the
Registration Statement, are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Offerors and, when duly executed by the Underwriter,
will constitute the valid and binding agreement of the Offerors
enforceable against the Offerors in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Guarantee Agreement, the Junior Subordinated
Debentures, the Trust Agreement, the Expense 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
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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, the Expense Agreement and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus. The
Trust Agreement, the Guarantee Agreement and the Indenture have been
duly qualified under the Trust Indenture Act.
(v) The consolidated financial statements, audited and
unaudited (including the notes thereto), included or incorporated by
reference in the Registration Statement present fairly the
consolidated financial position of the Company and its subsidiaries as
of the dates indicated and the consolidated results of operations and
cash flows of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved except as otherwise stated
therein. The financial statement schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The selected financial, pro forma and statistical data
included in the Prospectus are accurate in all material respects and
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited and unaudited 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. Each subsidiary of the Company is an entity duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization with corporate power and
authority under such laws to own, lease and operate its properties and
conduct its business. The Company and each of its subsidiaries 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), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(vii) The Company is duly registered under the Bank Holding
Company Act of 1956, as amended; each subsidiary of the Company that
conducts business as a bank is duly authorized to conduct such
business in each jurisdiction in which such business is currently
conducted; and the deposit accounts of United Bank and Trust Company
(the "Bank") are insured by either the Savings Association Insurance
Fund or the 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
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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 Florida commercial bank 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; 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 condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise. All of the outstanding
shares of capital stock of the Bank have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by
the Company directly, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind. All of the
outstanding shares of capital stock of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable and are owned by either the Company or the Bank
directly, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind.
(ix) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under the caption
"Capitalization" as of the date stated therein; all outstanding shares
of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable and were not issued in
violation of any preemptive right or other rights to purchase such
shares, and the capital stock of the Company conforms in all material
respects to the statements in relation thereto contained in the
Prospectus (and such statements correctly state the substance of the
instruments defining the capitalization of the Company); and the
Company Shares have been duly authorized for issuance and sale to the
Underwriter pursuant to this Agreement and, when issued and delivered
by the Company against payment therefor in accordance with the terms
of this Agreement, will be duly and validly issued and fully paid and
nonassessable and no person has any preemptive or other rights to
purchase any of the shares of Common Stock. No further approval or
authorization of any shareholder, the Board of Directors or others is
required for the issuance and sale of the Company Shares to the
several Underwriter, except as may be required under the 1933 Act or
under state or other securities or Blue Sky laws.
(x) The Preferred Securities have been duly and validly
authorized by the Trust for issuance and sale to the Underwriter
pursuant to this Agreement and, when executed and authenticated in
accordance with the Terms of the Trust Agreement and delivered by the
Trust to the Underwriter pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued and fully
paid and non-assessable and will constitute valid and legally binding
obligations of the Trust enforceable in accordance with their terms
and entitled to the benefits provided by the Trust Agreement. The
Trust Agreement has been
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duly authorized and, when executed by the Property Trustee, the
Delaware Trustee and the Administrative Trustees of the Trust and
delivered by the Trust, will have been duly executed and delivered by
the Trust and will constitute the valid and legally binding
instrument of the Trust, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law). The Preferred Securities conform, 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.
(xi) The Trust 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 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 Trust Common Securities is not subject to preemptive or other
similar rights; and at the Closing Time, all of the issued and
outstanding Trust 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.
(xii) 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.
(xiii) The issuance and sale of the Preferred Securities and
the Trust 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
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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, 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 affairs, assets or business 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 to be obtained by the
Trust for the issue and sale of the Preferred Securities and the
Trust 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 Company Shares, 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, the Expense 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 indenture,
loan agreement, mortgage, deed of trust or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries 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 of its subsidiaries or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
license, certificate, permit, registration or qualification of or with
any such court or other governmental agency or body is required for
the issue of the Company Shares, 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 1933 Act or the 1933 Act Regulations, 1934
Act or 1934 Act Regulations, state securities laws or under the TIA.
(xiv) 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").
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(xv) 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 business, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and its
subsidiaries taken as a whole, (B) any transaction that is material to
the Company and its subsidiaries taken as a whole except transactions
in the ordinary course of business, (C) any obligation that is
material to the Company and its subsidiaries taken as a whole, direct
or contingent, incurred by the Company or its subsidiaries, except
obligations incurred in the ordinary course of business, (D) any
change that is material to the Company and its subsidiaries taken as a
whole in the capital stock or outstanding indebtedness of the Company,
or (E) any dividend or distribution of any kind declared, paid, or
made on the capital stock of the Company.
(xvi) Neither the Company, the Bank nor any other subsidiary
is in violation of any provision of its articles of incorporation,
charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it may be
bound or to which any of its properties may be subject, except for
such defaults that would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
(xvii) 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, the Bank or
any other subsidiary 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, the Bank or any other subsidiary 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.
(xviii) 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.
(xix) The Company and its subsidiaries, including the Bank,
each has good and marketable title to all properties and assets
described in the Prospectus as owned by it, free
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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, the Bank or any other subsidiary holds
properties described in the Prospectus, are in full force and effect,
and neither the Company, the Bank nor any other subsidiary has any
notice of any material claim that has been asserted by anyone adverse
to the rights of the Company, the Bank or any other subsidiary under
any of the leases or subleases mentioned above, or affecting or
questioning the rights of such corporation to the continued
possession of the leased or subleased premises under any such lease
or sublease; the respective agreements to which the Company and its
subsidiaries is a party described in the Prospectus are valid and
enforceable in accordance with their terms by the Company and such
subsidiaries, except as enforcement may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors'
rights and rules of law governing specific performance, injunctive
relief and other equitable remedies and, to the Company's knowledge,
the other contracting party or parties thereto are not in breach or
default under any of such agreements, except for breaches or defaults
which would not, singly or in the aggregate, have a material adverse
effect on the business, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and
its subsidiaries taken as a whole.
(xx) Each of the Company and its subsidiaries, including the
Bank, owns, possesses or has obtained all governmental licenses,
permits, certificates, consents, orders, approvals and other
authorizations necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently
conducted, and as described in the Prospectus and neither the Company,
the Bank nor any other subsidiary 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, and all such licenses,
permits, certificates, consents, orders, approvals and authorizations
are valid and in full force and effect. Each of the Company and its
subsidiaries is conducting its business in compliance with all the
laws, rules and regulations of each jurisdiction in which it conducts
its business.
(xxi) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes as due, and
there is no tax deficiency that has been or might be asserted against
the Company that would materially and adversely affect its business,
properties, assets, rights, operations, condition (financial or
otherwise) or prospects; all tax liabilities are adequately provided
for on the books of the Company.
(xxii) The Company maintains insurance of the types and in
the amounts required by law and reasonably necessary to operate its
business including, but not limited to, insurance covering real and
personal property owned or leased by the Company against theft,
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damage, destruction, acts of vandalism, liability and malpractice and
all other risks customarily insured against, all of which insurance is
in full force and effect.
(xxiii) United Trust Company is a Florida trust company 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; and
Eickhoff, Pieper, and Xxxxxxxxxx _____, is an investment advisor duly
registered under applicable federal and state law, 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.
(xxiv) No labor problem exists with the employees of the
Company or with employees of the Bank or any other subsidiary 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, the Bank's or any
other subsidiary'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.
(xxv) Except as disclosed in the Prospectus, there are no
persons with registration or other similar rights to have any
securities of the Company registered pursuant to the Registration
Statement.
(xxvi) Except as disclosed in the Prospectus, the Company and
its subsidiaries, including 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
right") 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), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company,
the Bank nor any other subsidiary 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), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
(xxvii) 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
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timely payments of all taxes due and payable in respect of such
returns and no material deficiency has been asserted with respect
thereto by any taxing authority.
(xxviii) The Company has filed with the NASD all documents
and notices required by the NASD of companies that have issued
securities that are traded in the over-the-counter market and
quotations for which are reported by the National Market of The Nasdaq
Stock Market, Inc. (the "Nasdaq Stock Market").
(xxix) Neither the Trust, the Company nor any subsidiary has
taken or will take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation, under
the Exchange Act or otherwise, of the price of the Preferred
Securities.
(xxx) Neither the Company, the Bank nor any other subsidiary
is or has been (by virtue of any action, omission to act, contract to
which it is a party or by which it is bound, or any occurrence or
state of facts whatsoever) in violation of any applicable Federal,
state, municipal, or local statutes, laws, ordinances, rules,
regulations and/or orders issued pursuant to foreign, federal, state,
municipal, or local statutes, laws, ordinances, rules, or regulations
(including those relating to any aspect of banking, bank holding
companies, environmental protection, occupational safety and health,
and equal employment practices) heretofore or currently in effect,
except such violation that has been fully cured or satisfied without
recourse or that is not reasonably likely to have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxxi) Neither the Company, the Bank nor any other subsidiary
has any 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; neither the Company, the Bank nor any other
subsidiary has any agreement or understanding with any entity
concerning the future acquisition of a controlling interest in the
Company, the Bank or any other subsidiary 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.
(xxxii) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that: (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and with the
regulations of the Board of Governors of the Federal Reserve System,
the Federal Deposit Insurance Corporation, the Florida Department of
Banking and Finance, and the Securities and Exchange Commission, and
applicable state securities commissions, and to maintain
accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific
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authorizations; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(xxxiii) The Company has prepared and filed with the
Commission a registration statement for the Common Stock pursuant to
Section 12(g) of the 1934 Act. Such registration statement either has
been declared effective by the Commission under the 1934 Act or will
be declared effective by the Commission prior to or concurrently with
the commencement of the public offering of the Common Stock and the
Preferred Securities.
(xxxiv) Neither the Company nor any affiliate of the Company
does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075 of the
Florida Statutes, and the Company agrees to comply with such section
if, prior to the completion of the distribution of the Common Stock
and the Preferred Securities, the Company, or any affiliate of the
Company, commences doing such business.
(xxxv) All offers and sales of the securities of the Company
prior to the date hereof were made in compliance with the 1933 Act and
all other applicable state and federal laws or regulations. Except
pursuant to this Agreement, the Company knows of no outstanding claims
for finder's, origination, or underwriting fees with respect to prior
offers and sales of the securities of the Company.
(xxxvi) The Company has obtained for the benefit of the
Underwriter the agreement, enforceable by the Underwriter, of each of
the officers and directors of the Company and each holder of 5% of
shares of Common Stock or any securities convertible into, or
exercisable or exchangeable for, shares of Common Stock, that for a
period of 180 days after the date of the Prospectus, such persons will
not, without the prior written consent of the Underwriter, directly or
indirectly, offer, sell, transfer, or pledge, contract to sell,
transfer or pledge, or cause or in any way permit to be sold,
transferred, pledged, or otherwise disposed of, any: (A) shares of
Common Stock; (B) rights to purchase shares of Common Stock (including
without limitation, shares of Common Stock that may be deemed to be
beneficially owned by any such shareholder in accordance with the
applicable regulations of the Commission and shares of Common Stock
that may be issued upon the exercise of a stock option, warrant or
other convertible security); or (C) securities that are convertible or
exchangeable into shares of Common Stock.
(xxxvii) Neither the Company nor any of its subsidiaries nor,
to the best of the Company's knowledge, any of its employees or agents
has at any time during the last five years (A) made any unlawful
contribution to any candidate for foreign office, or failed to
disclose fully any contribution in violation of law, or (B) made any
payment to any foreign, federal or state governmental officer or
official or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the
United States or any jurisdiction thereof.
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(b) Any certificate signed by any authorized officer of the
Company or the Bank and delivered to the Underwriter or to counsel for the
Underwriter pursuant to this Agreement shall be deemed a representation and
warranty by the Company to the Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriter, Closing.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Trust
agrees to sell to the Underwriter, the Initial Trust Securities and the Company
agrees to sell to the Underwriter the Initial Company Shares, the foregoing
Initial Securities shall be purchased by the Underwriter at the purchase price
and terms set forth herein and in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
hereby grants an option to the Underwriter to purchase up to an additional
_________ Preferred Securities and the Company hereby grants an option to the
Underwriter to purchase up to an additional ___________ Company Shares, such
purchase by the Underwriter from the Trust and the Company to be 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 the Underwriter to the
Company setting forth the number of Option Securities as to which the
Underwriter is exercising the option and the time, date and place of payment and
delivery for the Option Securities. The time and date of delivery of the Option
Securities (the "Option Closing Date") shall be determined by the Underwriter
but shall not be later than five full business days after the exercise of said
option, nor in any event prior to Closing Time, as hereinafter defined, nor
earlier than the second business day after the date on which the notice of the
exercise of the option shall have been given.
(b) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the offices of Holland & Knight
LLP, 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx or at such other
place as shall be agreed upon by the Company and the Underwriter, at 9:30 a.m.
on the third full business day after the effective date of the Registration
Statement, or at such other time not earlier than three nor more than ten full
business days thereafter as the Underwriter and the Company shall determine
(such date and time of payment and delivery being herein called the "Closing
Time"). In addition, in the event that any or all of the Option Securities are
purchased by the Underwriter, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the
above-mentioned office of Holland & Knight LLP, or at such other place as shall
be agreed upon by the Company and the Underwriter, on the Option Closing Date
as specified in the notice from the Underwriter to the Company. Payment for the
Initial Securities and the Option Securities, if any, shall be made to the
Company by wire
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transfer of immediately available funds, against delivery to the Underwriter
for the account of the Underwriter of Preferred Securities and Company Shares
to be purchased by each.
(c) The Initial Securities shall be issued in the form of one or more
fully registered global securities (the "Global Securities") in book-entry form
in such denominations and registered in the name of the nominee of The
Depository Trust Company (the "DTC") or in such names as the Underwriter may
request in writing at least one business day before the Closing Date or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available for examination by the Underwriter and counsel to the Underwriter not
later than 10:00 A.M. on the business day prior to the Closing Time or the
Option Closing Date, as the case may be.
Section 3. Certain Covenants of the Offerors. Each of the Offerors
covenants jointly and severally with the Underwriter as follows:
(a) The Offerors will use their best efforts to cause the Registration
Statement to become effective and will notify the Underwriter immediately, and
confirm the notice in writing, (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request of the Commission to amend the Registration Statement or amend
or supplement the Prospectus or for additional information and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of the
Preferred Securities or capital stock, for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any
of such purposes. The Offerors will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending such
use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to
the Registration Statement, or any amendment or supplement if the Offerors have
elected to rely upon Rule 430A, to the Prospectus (including documents
incorporated by reference into such prospectus or to the Prospectus) of which
the Underwriter shall not have previously been advised and have previously been
furnished a copy, or to which the Underwriter or counsel for the Underwriter
shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriter 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-2 under the 1933 Act) and signed
copies of all consents and certificates of experts as the Underwriter may
reasonably request.
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(d) The Offerors will deliver or cause to be delivered to the
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriter may reasonably request, and the Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will
deliver or cause to be delivered to the Underwriter, without charge, as soon as
the Registration Statement shall have become effective (or, if the Offerors
have elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933
Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the
Preferred Securities as contemplated in this Agreement and in the Prospectus.
If, at any time when a prospectus is required by the 1933 Act to be delivered
in connection with sales of the Preferred Securities, any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriter or counsel for the Offerors, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements.
(f) The Offerors will use their best efforts, in cooperation with the
Underwriter, to qualify the Company Shares, Preferred Securities and the Junior
Subordinated Debentures, for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriter may designate
and to maintain such qualifications in effect for a period of not less than one
year from the effective date of the Registration Statement; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Company Shares and
Preferred Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of
Rule 158) to its securityholders, the Underwriter and the Securityholders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement of the Company and its subsidiaries (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations)
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covering a period of at least 12 months beginning after the effective date of
the Registration Statement but not later than the first day of the Company's
fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the Preferred
Securities, combined with the entire proceeds from the issuance by the Trust to
the Company of the Trust's Trust 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 mariner specified in the Prospectus under the caption "Use of
Proceeds."
(i) The Offerors, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to
be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act
subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company
will furnish to the Underwriter copies of all annual reports, quarterly reports
and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the Commission, such other
documents, reports, Proxy Statements and information as shall be furnished by
the Company to its stockholders generally, every material press release in
respect to the Company or its affairs which was released or prepared by the
Company, and any additional information of a public nature concerning the
Company or its business that the Underwriter may reasonably request.
(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 the legal fees and related filing fees of
counsel to the Company to prepare one or more "blue sky" surveys (each, a "Blue
Sky Survey") for use in connection with the offering of the Company Shares and
the Preferred Securities as contemplated by the Prospectus and a copy of such
Blue Sky Survey or surveys shall be delivered to each of the Company and the
Underwriter.
(m) If, at the time the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then the Offerors will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule 424(b),
copies of an amended Prospectus, or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of
the Company Shares and the Preferred Securities, prepare and distribute to the
Underwriter and counsel to the Underwriter, copies of the documents used in
connection with the issuance of such Securities.
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(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, except as
contemplated by the Prospectus.
(p) During a period of 180 days from the date of the Prospectus,
neither the Trust nor the Company will, without the prior written consent of
the Underwriter, directly or indirectly, offer, sell, offer to sell, or
otherwise dispose of any Common Stock or 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 that are substantially similar to
the Preferred Securities or the Common Stock, including any guarantee of such
securities, or sell or grant options, rights, or warrants with respect to any
shares of Common Stock (other than the grant of options pursuant to option
plans or agreements existing on the date hereof). The foregoing sentence shall
not apply to any of the Company Shares or Preferred Securities to be sold
hereunder.
(q) The Company will maintain a transfer agent and, if required by law
or the rules of The Nasdaq Stock Market or any national securities exchange on
which the Common Stock and the Preferred Securities are listed, a registrar
(which, if permitted by applicable laws and rules, may be the same entity as
the transfer agent) for its Common Stock and Preferred Securities,
(r) The Company shall deliver the requisite notice of issuance to the
NASD and shall take all necessary and appropriate action within its power to
cause or permit trading and listing of the Common Stock and the Preferred
Securities on the OTC Bulletin Board for a period of at least 36 months after
the date of this Agreement, except during such period(s) in which the Company's
Common Stock and/or Preferred Securities shall be listed for trading on any of
the: (A) Nasdaq Small Market; (B) The Nasdaq National Market System; (C) the
American Stock Exchange; or (D) the New York Stock Exchange; or with the prior
written consent of the Underwriter.
(s) The Company shall promptly prepare and file with the Commission,
from time to time, such reports as may be required to be filed by the Company
under the 1933 Act, the 1934 Act, the 1933 Act Regulations, and the 1934 Act
Regulations.
(t) The Company will apply the net proceeds from the sale of the
Common Stock and the Junior Subordinated Debentures to be sold by it for the
purposes set forth in the Prospectus.
Section 4. Payment of Expenses and Independent Underwriter Fee.
The Company covenants and agrees with the Underwriter that the Company
will pay or cause to be paid (directly or by reimbursement) all of the
obligations of the Company and the Trust under this Agreement, including (a)
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereof to the Underwriter, (b) the
preparation, printing and distribution of this
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Agreement, the Company Shares and the Preferred Securities and the Blue Sky
Survey, (c) the issuance and delivery of the Company Shares and the Preferred
Securities to the Underwriter, including any transfer taxes payable upon the
sale of such securities to the Underwriter, (d) the fees and disbursements of
the Company's counsel and accountants, (e) NASD filing fees, (f) fees and
disbursements of counsel to the Underwriter in connection with the Blue Sky
Survey (such counsel's fees shall not exceed $______ exclusive of out-of-pocket
expenses of counsel), (g) the qualification of the Company Shares and the
Preferred Securities under the applicable securities laws in accordance with
Section 3(f) and any filing fee for review of the offering with the NASD, (h)
the legal fees and expenses of the Underwriter's counsel (such counsel's fees
shall not exceed $60,000 exclusive of out-of-pocket expenses of counsel) and
general out-of-pocket expenses of the Underwriter, (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 _____________,
1998, (ii) the Company abandons or terminates the Offering, or (iii) this
Agreement is terminated by the Underwriter in accordance with the provisions of
Section 5 or 11(a), the Company shall reimburse the Underwriter for all its
reasonable out-of-pocket expenses, as set forth in this Section 4, including
the reasonable fees and disbursements of counsel for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. The obligations of
the Underwriter to purchase and pay for the Company Shares and the Preferred
Securities that it has 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 the Underwriter's
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 the Underwriter may agree to in writing; at the Closing Time, no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act and no proceedings for that purpose shall
have been instituted or shall be pending or, to the Underwriter's knowledge or
the knowledge of the Offerors, shall be contemplated by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the satisfaction of counsel for the Underwriter. If the
Offerors have elected to rely upon Rule 430A, a prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements of
Rule 430A).
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(b) At the Closing Time, the Underwriter shall have received:
(i) The favorable opinion, dated as of Closing Time, of
Holland & Knight LLP, special counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit C.
(ii) The favorable opinion, dated as of Closing Time, of
__________________, special Delaware counsel for the Offerors, in form
and substance satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit D.
(iii) The favorable opinion, dated as of Closing Time, of
_________________, counsel for the Indenture Trustee and the Delaware
Trustee, in form and substance satisfactory to counsel for the
Underwriter, substantially in the form set forth in Exhibit E.
(iv) The favorable opinion, dated as of Closing Time, of
Xxxxx, Xxxxxxxxx, Xxxxxxx, Bowdoin & Xxxxxxx, P.A., counsel for the
Underwriter, in form and substance satisfactory to the Underwriter.
In giving such opinions, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States, upon opinions of other counsel, who shall be counsel satisfactory to
counsel for the Underwriter (the Underwriter agrees and acknowledges that
Xxxxxxx & Knight LLP and Xxxxx, Xxxxxxxxx, Xxxxxxx, Bowdoin & Xxxxxxx, P.A.,
will rely on the opinion of _________________ with respect to matters of
Delaware law), in which case the opinion shall state that counsel believes that
the Underwriter and Underwriter's counsel are entitled to so rely. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company, the Bank and the Trust and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date, (i) the
Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, the Offerors shall have complied in all material respects with Rule
430A (if they shall have elected to rely thereon) and neither the Registration
Statement nor the Prospectus, as they may then be amended or supplemented, shall
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of business, (iii)
no action, suit or proceeding at law or in equity shall be pending or, to the
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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, in all material
respects, with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time or Option Closing Date,
as applicable, (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 or Option Closing Date, as
applicable, 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 knowledge of the Offerors, threatened by the
Commission. At the Closing Time, the Underwriter shall have received a
certificate of the Chairman and of 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, the
Underwriter shall have received from Xxxxx Xxxxxxxx LLP a letter or letters,
dated such date, in form and substance satisfactory to the Underwriter,
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 _____________, 1997 and 1996, and for each of the years in the
three year period ended _____________, 1997 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 procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, interim financial
information for the unaudited interim consolidated financial
statements of the Company for the ___ month period ended ____________,
1997 and 1998, including a reading of the latest available unaudited
interim consolidated financial statements for the Company, a reading
of the minutes of all meetings of the Board of Directors of the
Company and the Bank and of the Audit and Executive Committees of the
Board of Directors since January 1, 1998, inquiries of certain
officials of the Company and its subsidiaries responsible for
financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited interim consolidated financial information
do not comply as to form in all material respects with
applicable accounting requirements of the 1933
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Act, or are not presented in conformity with generally
accepted accounting principles applied on a basis
consistent with that of the audited financial statements
included in the Prospectus;
(B) at a specified date not more than three days prior to
the date of this Agreement, there was any increase in the
capital stock, long-term debt, net current assets or real
estate owned, or any increase in total assets, deposits, loan
loss allowance or stockholders' equity of the Company and its
consolidated subsidiaries, in each case as compared with
amounts shown in the financial statements at ___________,
1998 included in the Registration Statement, except in all
cases for increases or decreases that the Registration
Statement discloses have occurred or may occur; or
(C) for the period from ____________, 1998 to a specified
date not more than three days prior to the date of this
Agreement, there was any decrease in net interest income,
non-interest income or net income or net income per common
and common equivalent share, or any increase the provision
for loan losses or non-interest expense in each case as
compared with a period of comparable length in the preceding
year, except in all cases for increases or decreases that the
Registration Statement discloses have occurred or may occur;
and
(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); and
(iv) on the basis of a review of schedules provided to them
by the Company, nothing came to their attention that caused them to
believe that the pro forma information, set forth in the Prospectus
under the headings "Capitalization" and "_____________" had not been
correctly calculated on the basis described therein.
(e) At the Closing Time, the Underwriter shall have received from
Xxxxx Xxxxxxxx LLP a letter, in form and substance satisfactory to the
Underwriter and dated as of the Closing Time, to the effect that it reaffirms
the statements made in the letter furnished pursuant to Section 5(d), except
that he inquiries specified in Section 5(d) shall be made based upon the latest
available unaudited interim consolidated financial statements and the specified
date referred to shall be a date not more than three days prior to the Closing
Time.
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(f) At the Closing Time, counsel for the Underwriter shall have been
furnished with all such documents, certificates and opinions as they may
request for the purpose of enabling them to pass upon the issuance and sale of
the Company Shares and Preferred Securities as contemplated in this Agreement
and the matters referred to in Section 5(c) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Offerors, the performance of any of the covenants of the
Offerors, or the fulfillment of any of the conditions herein contained; all
proceedings taken by the Company at or prior to the Closing Time in connection
with the authorization, issuance and sale of the Company Shares, Preferred
Securities and the Junior Subordinated Debentures as contemplated in this
Agreement shall be satisfactory in form and substance to the Underwriter and to
counsel for the Underwriter.
(g) Between the date of this Agreement and the Closing Time, (i) no
downgrading shall have occurred in the rating accorded any securities of the
Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organizations" as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(h) The Company shall have paid, or made arrangements satisfactory to
the Underwriter for the payment of, all such expenses as may be required by
Section 4 hereof.
(i) In the event the Underwriter exercise its option provided in
Section 2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriter to purchase the Option Securities that it has
agreed to purchase shall be subject to the accuracy of the representations and
warranties of the Offerors contained herein and of the statements in any
certificates furnished by the Offerors hereunder as of such Option Closing Date
(as if made on such date), to the performance by the Offerors of their
obligations hereunder and to the receipt by the Underwriter on the Option
Closing Date of:
(1) A certificate, dated the Option Closing Date, of
the Chairman and of 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 & Knight LLP,
counsel for the Company, addressed to the Underwriter and
dated the Option Closing Date, in form satisfactory to Xxxxx,
Xxxxxxxxx, Xxxxxxx, Bowdoin & Xxxxxxx, P.A., counsel to the
Underwriter, 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 ________________,
special Delaware counsel for the Offerors, addressed to the
Underwriter and dated the Option Closing
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Date, in form satisfactory to Xxxxx, Xxxxxxxxx, Xxxxxxx,
Bowdoin & Xxxxxxx, P.A., counsel to the Underwriter,
relating to the Option Securities and otherwise to the same
effect as the opinion required by Section 5(b) hereof;
(4) The favorable opinion of ____________________,
counsel for the Indenture Trustee and the Delaware Trustee,
addressed to the Underwriter and dated the Option Closing
Date, in form satisfactory to Xxxxx, Xxxxxxxxx, Xxxxxxx,
Bowdoin & Xxxxxxx, P.A., counsel to the Underwriter, relating
to the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b) hereof;
(5) The favorable opinion of Xxxxx, Xxxxxxxxx,
Xxxxxxx, Bowdoin & Xxxxxxx, P.A., 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
(6) A letter from Xxxxx Xxxxxxxx LLP addressed to
the Underwriter and dated the Option Closing Date, in form
and substance satisfactory to the Underwriter and
substantially the same in form and substance as the letter
furnished to the Underwriter pursuant to Section 5(d) hereof.
(j) The Company Shares, 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 or securities laws of such jurisdictions as
shall have been reasonably specified by the Underwriter and the offering
contemplated by this Agreement shall have been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriter on notice to the Offerors at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7, 10 and
12 shall remain in effect.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and its officers, directors, employees, agents and counsel of the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any loss,
liability, claim, damage, and expense whatsoever (which shall include, but not
be limited to, amounts incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to
24
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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 Company
Shares and Preferred Securities under the "blue sky" or securities laws thereof
or filed with the Commission or any securities exchange; unless such statement
or omission or alleged statement or omission was made in reliance upon and in
conformity with written information concerning the Underwriter, the
Underwriting Agreement or the compensation of the Underwriter furnished to the
Company by the Underwriter expressly for inclusion in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or in any application, as the case may be, or (ii) any
breach of any representation, warranty, covenant or agreement of the Company
contained in the Underwriting Agreement. 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 such
Underwriter's directors, officers, employees and counsel according to his or
her normal hourly billing rates. The indemnification provisions shall also
extend to all affiliates of the Underwriter, 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
Underwriter or the persons entitled to the benefit of these indemnification
provisions.
(b) The Underwriter agrees to indemnify and hold harmless the
Offerors, their directors, officers who signed the Registration Statement and
each person, if any, who controls the Offerors within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, and each Selling Shareholder
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 the Underwriter, the Underwriting Agreement or the
compensation of the Underwriter, furnished to either of the Offerors by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or in any application. The Company and each Selling
Shareholder acknowledge that the statements set forth in paragraphs _____ under
the caption "Underwriting" in the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriter for inclusion in the
Registration Statement or any Preliminary Prospectus or the Prospectus.
(c) An indemnified party shall give prompt notice to the indemnifying
party if any action, suit, proceeding or investigation is commenced in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve the indemnifying party from its
obligations to indemnify hereunder, except to the extent that the indemnifying
party has
25
26
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 reasonably 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 that are different from or additional to those available to
one or more of the indemnifying parties, in any of which events such fees and
expenses shall be borne by the indemnifying party and the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties. The Company shall be liable for any settlement of
any claim against the Underwriter (or its directors, officers, employees,
affiliates or controlling persons), made with the Company's written consent,
which consent shall not be unreasonably withheld. The Company shall not,
without the written consent of the Underwriter, settle or compromise any claim
against it based upon circumstances giving rise to an indemnification claim
against the Company hereunder unless such settlement or compromise provides
that the Underwriter and the other indemnified parties shall be unconditionally
and irrevocably released from all liability in respect to such claim.
(d) In order to provide for just and equitable contribution, if a
claim for indemnification pursuant to these indemnification provisions is made
but it is found in a final judgment by a court that such indemnification may
not be enforced in such case, even though the express provisions hereof provide
for indemnification in such case, then the Company, on the one hand, and the
Underwriter, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriter, on the
other hand, from the underwriting, and also the relative fault of the Company,
on the one hand, and the Underwriter, on the other hand, in connection with the
statements, acts or omissions which resulted in such loss, liability claim,
damage and expense, and any other relevant equitable considerations shall also
be considered. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not be found
liable for such fraudulent misrepresentation or omission. Notwithstanding the
foregoing, the Underwriter in the aggregate shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
commission paid by the Company to the Underwriter in the aggregate with respect
to the Company Shares and Preferred Securities purchased by the Underwriter.
(e) The indemnity and contribution agreements contained herein are in
addition to any liability which the Company may otherwise have to the
Underwriter.
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27
(f) Neither termination nor completion of the engagement of the
Underwriter nor any investigation made by or on behalf of the Underwriter shall
affect the indemnification obligations of the Company or the Underwriter
hereunder, which shall remain and continue to be operative and in full force
and effect.
Section 7. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and other
statements of the Offerors or its officers or trustees, set forth in or made
pursuant to this Agreement will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Offerors, or the
Underwriter or any controlling person and will survive delivery of and payment
for the Company Shares and Preferred Securities.
Section 8. Offering by the Underwriter. The Trust and the Company are
advised by the Underwriter that the Underwriter propose to make a public
offering of the Common Stock and Preferred Securities, on the terms and
conditions set forth in the Registration Statement from time to time as and
when the Underwriter deem advisable after the Registration Statement becomes
effective. Because the NASD is expected to view the Preferred Securities as
interests in a direct participation program, the offering of the Preferred
Securities is being made in compliance with the applicable provisions of Rule
2810 of the NASD's Conduct Rules.
Section 9. Termination of Agreement.
(a) The Underwriter may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or otherwise,
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise. whether or not arising in the
ordinary course of business), or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriter's reasonable judgment, impracticable to
market the Company Shares, or the Preferred Securities or enforce contracts for
the sale of the such 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 in political, financial or economic conditions as in the
Underwriter's reasonable judgment makes it inadvisable to proceed with the
Offering, sale and delivery of the Company Shares, or the Preferred Securities
on the terms contemplated by the Prospectus, or (vi) if the Underwriter
reasonably determines (which determination shall be in good faith) that there
has not been satisfactory disclosure of all relevant
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28
financial information relating to the Offerors in the Offerors' disclosure
documents and that the sale of the Preferred Securities is inadvisable given
such disclosures, or (vii) if the Company shall have failed, refused or been
unable, on or prior to the Closing Date, or on or prior to any later date on
which the Option Shares are to be purchased, as the case may be, to perform any
agreement on its part to be performed, or because any other condition of the
Underwriter's obligations hereunder required to be fulfilled by the Company is
not fulfilled.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6 and 7 shall remain in effect.
Section 10. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices shall be addressed as follows:
If to the Underwriter:
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx, First Vice President
with a copy to:
Xxxxx, Xxxxxxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxx, P.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
If to the Company or the Trust:
United Financial Holdings, Inc.
000 Xxxxx Xxxxxx Xxxxx
X. X. Box 14517
Saint Petersburg, Florida 33733
Attention: Xxxx X. Xxxxxx, President and
Chief Executive Officer
with a copy to:
Holland & Knight LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxx Xxx 0000
Xx. Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
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Section 11. Parties. This Agreement is made solely for the benefit of
the Underwriter, and the officers, directors, employees, agents and counsel of
the Underwriter specified in Section 6, the Trust and the Company and, to the
extent expressed, any person controlling the Trust, the Company or the
Underwriter, and the directors of the Company, or trustees of the Trust, their
respective officers who have signed the Registration Statement and their
respective executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The term "successors and assigns" shall not include any purchaser, as such
purchaser, from the Underwriter of the Company Shares, the Shareholders Shares,
and the Preferred Securities.
Section 12. Arbitration. Any claims, controversies, demands, disputes
or differences between or among the parties hereto or any persons bound hereby
arising out of, or by virtue of, or in connection with, or otherwise relating
to this Agreement shall be submitted to and settled by arbitration conducted in
St. Petersburg, 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 the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 13. Governing Law and Time. This Agreement shall be governed
by the laws of the State of Florida. Specified times of the day refer to New
York City time.
Section 14. Counterparts. This Agreement may be executed in one or
more counterparts, and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
Very truly yours,
UFH CAPITAL TRUST I
By:
-----------------------------------------
Name:
Title: Trustee
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30
UNITED FINANCIAL HOLDINGS, INC.
By:
------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXXX X. XXXXX & CO.
By:
----------------------------
Name:
Title:
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31
SCHEDULE A
Amount of Initial Amount of Initial Percentage of
Trust Securities to Company Shares to Initial Securities
be Purchased be Purchased to be Purchased
------------------- ----------------- ------------------
Xxxxxxx X. Xxxxx & Co.
------------------- ----------------- ------------------
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EXHIBIT A
UFH CAPITAL TRUST I
(A DELAWARE BUSINESS TRUST)
___________ PREFERRED SECURITIES
_____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
AND
UNITED FINANCIAL HOLDINGS, INC.
______ SHARES OF COMMON STOCK
PRICE DETERMINATION AGREEMENT
__________, 1998
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof
(the "Underwriting Agreement"), among UFH Capital Trust I, a Delaware business
trust (the "Trust"), United Financial Holdings, Inc. (the "Company" and
together with the Trust, the "Offerors"), and Xxxxxxx X. Xxxxx & Co. (the
"Underwriter"). Subject to the terms and conditions set forth therein, the
Underwriting Agreement provides for the purchase by the Underwriter from the
Trust, of ___________ of the _____% Cumulative Trust Preferred Securities of
the Trust (the "Preferred Securities"), subject to a _________ adjustment (to
cover over-allotments, if any). This Agreement is the Price Determination
Agreement referred to in the Underwriting Agreement.
X. Xxxxxxxx to Section 2 of the Underwriting Agreement, the Offerors
agree with the Underwriter as follows:
1. The public offering price per Preferred Security shall be $10.
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2. The purchase price for the Preferred Securities to be paid by the
Underwriter shall be $____ per Preferred Security.
3. The commission per Preferred Security to be paid by the Company to
the Underwriter for its commitments hereunder shall be $________ per Preferred
Security.
4. The distribution rate on the Preferred Securities shall be _____%
per annum.
B. Subject to the terms and conditions set forth therein, the
Underwriting Agreement provides for the purchase by the Underwriter from the
Company of ______ shares of Common Stock, subject, in the case of the Company,
to a ______ adjustment (to cover over-allotments, if any). Pursuant to Section 2
of the Underwriting Agreement, the Company agrees with the Underwriter as
follows:
1. The public offering price per Common Stock shall be $_____.
2. The purchase price for the Common Stock to be paid by the
Underwriter shall be $______ per Common Stock.
3. The commission per Common Stock to be paid by the Company to
the Underwriter for its commitments hereunder shall be
$______ per Common Stock.
The Offerors represent and warrant to the Underwriter that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of Florida.
If the foregoing is in accordance with the understanding of the
Underwriter of the agreement between the Underwriter and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriter and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
UFH CAPITAL TRUST I
By:
------------------------------------
Name:
Title: Trustee
34
UNITED FINANCIAL HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXXX X. XXXXX & CO.
By:
-----------------------------
Name:
Title:
35
EXHIBIT B
Master Selected Dealer Agreement
Gentlemen:
(1) General. We understand that Xxxxxxx X. Xxxxx & Co. is entering
into this Agreement with us and other firms who may be offered the right to
purchase as principal a portion of securities being distributed to the public.
The terms and conditions of this Agreement shall be applicable to any public
offering of securities ("Securities") pursuant to a registration statement
filed under the Securities Act of 1933 (the "Securities Act") wherein Xxxxxxx
X. Xxxxx & Co. (acting for its own account or for the account of any
underwriting or similar group or syndicate) is responsible for managing or
otherwise implementing the sale of the Securities to selected dealers
("Selected Dealers") and has informed us that such terms and conditions shall
be applicable. Any such offering of Securities to us as a Selected Dealer is
hereinafter called an "Offering." In the case of any Offering in which you are
acting for the account of any underwriting or similar group or syndicate
("Underwriter"), the terms and conditions of this Agreement shall be for the
benefit of, and binding upon, such Underwriter, including, in the case of any
Offering in which you are acting with others as Underwriter. The term
"preliminary prospectus" means any preliminary prospectus relating to an
Offering of Securities or any preliminary prospectus supplement together with a
prospectus relating to an Offering of Securities; the term "Prospectus" means
the prospectus, together with the final prospectus supplement, if any, relating
to an Offering of Securities, filed pursuant to Rule 424(b) or Rule 424(c)
under the Securities Act or any successor or similar rules.
(2) Conditions of Offering Acceptance and Purchase. Any Offering will
be subject to delivery of the Securities and their acceptance by you and any
other Underwriter, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. You will
advise us by telegram, telex, facsimile, e-mail, or other form of written
communication ("Written Communication") of the particular method and
supplementary terms and conditions (including, without limitation, the
information as to prices and offering date referred to in Section 3(b)) of any
Offering in which we are invited to participate. To the extent such
supplementary terms and conditions are inconsistent with any provision herein,
such terms and conditions shall supersede any such provision. Unless otherwise
indicated in any such Written Communication, acceptances and other
communications by us with respect to any Offering should be sent to Xxxxxxx X.
Xxxxx & Co. You reserve the right to reject any acceptance in whole or in part.
Payment for Securities purchased by us is to be made at such office as you may
designate, at the public offering price, or, if you shall so advise us, at such
price less the concession to dealers or at the price set forth or indicated in
a Written Communication, on such date as you shall determine, on one day's
prior notice to us, by wire transfer to a Xxxxxxx X. Xxxxx & Co. account,
against delivery of certificates or other forms evidencing such Securities. If
payment is made for Securities purchased by us at the public offering price,
the concession to which we shall be entitled will be paid to us upon
termination of the provisions of Section 3(b) with respect to such Securities.
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Unless we promptly give you written instructions otherwise, if
transactions in the Securities may be settled through the facilities of The
Depository Trust Company, delivery of Securities purchased by us will be made
through such facilities if we are a member, or if we are not a member,
settlement may be made through our ordinary correspondent who is a member.
(3) Representations, Warranties, and Agreements.
(a) Prospectuses. You shall provide us with such number of copies of
each preliminary, prospectus, the Prospectus and any supplement thereto
relating to each Offering as we may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934
(Exchange Act) and the applicable Rules and regulations of the Securities and
Exchange Commission thereunder. We represent that we are familiar with Rule
15c2-8 under the Exchange Act relating to the distribution of preliminary and
final prospectuses and agree that we will comply therewith. We agree to keep an
accurate record of our distribution (including dates, number of copies, and
persons to whom sent) of copies of the Prospectus or any preliminary prospectus
(or any amendment or supplement to any thereof), and promptly upon request by
you, to bring all subsequent changes to the attention of anyone to whom such
material shall have been furnished. We agree to furnish to persons who receive
a confirmation of sale a copy of the Prospectus filed pursuant to Rule 424(b)
or Rule 424(c) under the Securities Act. We agree that in purchasing Securities
in an Offering we will rely upon no statements whatsoever, written or oral,
other than the statements in the Prospectus delivered to us by you. We will not
be authorized by the issuer or other seller of Securities offered pursuant to a
Prospectus or by any Underwriter to give any information or to make any
representation not contained in the Prospectus in connection with the sale of
such Securities.
(b) Offer and Sale to the Public. With respect to any Offering of
Securities, you will inform us by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to dealers,
and the time when we may commence selling Securities to the public. After such
public offering has commenced, you may change the public offering price, the
selling concession, and the reallowance to dealers. With respect to each
Offering of Securities, until the provisions of this Section 3(b) shall be
terminated pursuant to Section 4, we agree to offer Securities to the public
only at the public offering price, except that if a reallowance is in effect, a
reallowance from the public offering price not in excess of such reallowance
may be allowed as consideration for services in distribution to dealers who are
actually engaged in the investment banking or securities business, who execute
the written agreement prescribed by Rule 2740 of the Rules of Conduct of the
National Association of Securities Dealers, Inc. (the "NASD") and who are
either members in good standing of the NASD or foreign brokers or dealers not
eligible for membership in the NASD who represent to us that they will promptly
reoffer such Securities at the public offering price and will abide by the
conditions with respect to foreign brokers and dealers set forth in Section
3(e).
(c) Stabilization and Overallotment. You may, with respect to any
Offering, be authorized to over-allot in arranging sales to Selected Dealers,
to purchase and sell Securities, any other securities of the issuer of the
Securities of the same class and series and any other securities of such issuer
that you may designate for long or short account, and to stabilize or maintain
the market price of the Securities. We agree to advise you from time to time
upon request, prior to the termination of the provisions of Section 3(b) with
respect to any Offering, of the amount of
37
Securities purchased by us hereunder remaining unsold and we will, upon your
request, sell to you, for the accounts of the Underwriter, such amount of
Securities as you may designate, at the public offering price thereof less an
amount to be determined by you not in excess of the concession to dealers. In
the event that prior to the later of (i) the termination of the provisions of
Section 3(b) with respect to any Offering, or (ii) the covering by you of any
short position created by you in connection with such Offering for your account
or the account of one or more Underwriters, you purchase or contract to
purchase for the account of any of the Underwriters, in the open market or
otherwise, any securities delivered to us, you reserve the right to withhold
the above-mentioned concession to dealers on such Securities if sold to us at
the public offering price, or if such concession has been allowed to us through
our purchase at a net price, we agree to repay such concession upon your
demand, plus in each case any taxes on redelivery, commissions, accrued
interest, and dividends paid in connection with such purchase or contract to
purchase.
(d) Open Market Transactions. We agree to abide by Regulation M under
the Exchange Act and we agree not to bid for, purchase, attempt to purchase, or
sell, directly or indirectly, any Securities, any other Reference Securities
(as defined in Regulation M) of the issuer, or any other securities of such
issuer as you may designate, except as brokers pursuant to unsolicited orders
and as otherwise provided in this Agreement. If the Securities are common stock
or securities convertible into common stock, we agree not to effect, or attempt
to induce others to effect, directly or indirectly, any transactions in or
relating to any stock of such issuer, except to the extent permitted by Rule
101 of Regulation M under the Exchange Act.
(e) NASD. We represent that we are actually engaged in the investment
banking or securities business and we are either a member in good standing of
the NASD, or, if not such a member, a foreign dealer not eligible for
membership. If we are such a member we agree that in making sales of the
Securities we will comply with all applicable Rules of the NASD, including,
without limitations the NASD's Interpretation with Respect to Free-Riding and
Withholding and Rule 2740 of the Conduct Rules. If we are such a foreign
dealer, we agree not to offer or sell any Securities in the United States of
America except through you and in making sales of Securities outside the United
States of America we agree to comply as though we were a member with such
Interpretation and Rule 2730, 2740 and 2750 of the Conduct Rules of the NASD
and to comply with Rule 2420 of the Conduct Rules of the NASD as it applies to
a nonmember broker or dealer in a foreign country.
(f) Relationship among Underwriter and Selected Dealers. You may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and,
with your consent, the Underwriter (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the public
offering price less all or any part of the concession. We are not authorized to
act as agent for you or any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Nothing contained
herein or in any Written Communication from you shall constitute the Selected
Dealers partners with you or any Underwriter or with one another. Neither you
nor any Underwriter shall be under any obligation to us except for obligations
assumed hereby or in any Written Communication from you in connection with any
Offering. In connection with any Offering, we agree to pay our proportionate
share of any claim, demand, or liability asserted against us, and the other
Selected Dealers or any of them, or against you or the Underwriter, if any,
based
38
on any claim that such Selected Dealers or any of them constitute an
association, unincorporated business, or other separate entity, including in
each case our proportionate share of any expense incurred in defending against
any such claim, demand, or liability.
(g) Blue Sky Laws. Upon application to you, you will inform us as to
the jurisdictions in which you believe the Securities have been qualified for
sale or are exempt under the respective securities or "blue sky" laws of such
jurisdictions. We understand and agree that compliance with the securities or
"blue sky" laws in each jurisdiction in which we shall offer or sell any of the
Securities shall be our sole responsibility and that you assume no
responsibility or obligations as to the eligibility of the Securities for sale
or our right to sell the Securities in any jurisdiction.
(h) Compliance with Law. We agree that in selling Securities pursuant
to any Offering (which agreement shall also be for the benefit of the issuer or
other seller of such Securities), we will comply with the applicable provisions
of the Securities Act and the Exchange Act, the applicable Rules and
regulations of the Securities and Exchange Commission thereunder, the
applicable Rules and regulations of the NASD, and the applicable Rules and
regulations of any securities exchange having jurisdiction over the Offering.
You shall have full authority to take such action as you may deem advisable in
respect of all matters pertaining to any Offering. Neither you nor any
Underwriter shall be under any liability to us, except for lack of good faith
and for obligations expressly assumed by you in this Agreement; provided,
however, that nothing in this sentence shall be deemed to relieve you from any
liability imposed by the Securities Act.
(4) Termination Supplements and Amendments. This Agreement may be
terminated by either party hereto upon five business days' written notice to
the other party; provided that with respect to any Offering for which a Written
Communication was sent and accepted prior to such notice, this Agreement as it
applies to such Offering shall remain in full force and effect and shall
terminate with respect to such Offering in accordance with the last sentence of
this Section. This Agreement may be supplemented or amended by you by written
notice thereof to us, and any such supplement or amendment to this Agreement
shall be effective with respect to any Offering to which this Agreement applies
after the date of such supplement or amendment. Each reference to "this
Agreement" herein shall, as appropriate, be to this Agreement as so amended and
supplemented. The terms and conditions set forth in Sections 3(b) and (d) with
regard to any Offering will terminate at the close of business on the thirtieth
day after the date of the initial public offering of the Securities to which
such Offering relates, but such terms and conditions, upon notice to us, may be
terminated by you at any time.
(5) Successors and Assigns. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified or
indicated in Section 1, and the respective successors and assigns of each of
them.
(6) Governing Law. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary
terms and conditions with respect to such Offering as may be contained in any
Written Communication from you to us in connection therewith shall be governed
by, and construed in accordance with, the laws of the State of New York.
39
By signing this Agreement we confirm that our subscription to, or our
acceptance of any reservation of any Securities pursuant to an Offering shall
constitute (i) acceptance of and agreement to the terms and conditions of this
Agreement (as supplemented and amended pursuant to Section 4) together with and
subject to any supplementary terms and conditions contained in any Written
Communication from you in connection with such Offering, all of which shall
constitute a binding agreement between us and you, individually, or as
Underwriter, (ii) in confirmation that our representations and warranties set
forth in Section 3 are true and correct at that time and (iii) confirmation
that our agreements set forth in Sections 2 and 3 have been and will be fully
performed by us to the extent and at the times required thereby.
Very truly yours,
---------------------------------
(Name of Firm)
---------------------------------
(Authorized Signature)
---------------------------------
(Title)
Confirmed, as of the date first above written:
XXXXXXX X. XXXXX & CO.
By:
-------------------------------
40
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
Execution Date: ___________________
41
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 duly organized, validly existing and in good
standing under the laws of the State of Florida with requisite corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement and is registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended. Each of the
Company's subsidiaries is duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of incorporation, with requisite
corporate power and authority to own, lease and operate its respective
properties and conduct its business as described in the Registration Statement,
except where the failure to be in good standing 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. The Bank is a Florida-chartered commercial bank
duly organized, validly existing and in good standing under the laws of the
State of Florida. The Trust is validly existing in good standing as a business
trust under the Delaware Business Trust Act, 12 Del. C. Section 3801 et seq.
2. The Company and each subsidiary are duly qualified to transact business as
foreign corporations under the corporation laws of each jurisdiction in which
the Company or such subsidiary, as the case may be, owns or leases property of
a nature, has an office, or transacts business of a type, that would make such
qualification necessary, except where the failure to so qualify 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.
3. 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 by law and, to such counsel's knowledge, no
proceedings for the termination or revocation of such membership or insurance
are pending or threatened.
4. All of the issued and outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued and are
fully paid and nonassessable and, to such counsel's knowledge, are owned by the
Company or the Bank, as the case may be, free and clear of any security
interests, liens, pledges, claims or other encumbrances, except where the
failure to own such shares free and clear of any security interests, liens,
pledges, claims or other encumbrances 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 and except that the Trust Preferred Securities are not owned by the
Company or the Bank.
42
5. The issued and outstanding shares of capital stock of the Company
immediately prior to the issuance and sale of the Company Shares to be sold by
the Company hereunder have been duly authorized and validly issued, are fully
paid and nonassessable, and there are no preemptive, preferential or, except as
described in the Prospectus and to such counsel's knowledge after
investigation, other rights to subscribe for or purchase any shares of capital
stock of the Company, and to such counsel's knowledge after investigation, no
shares of capital stock of the Company have been issued in violation of such
rights.
6. The certificates for the Company Shares and the Preferred Securities to be
delivered hereunder are in due and proper form and conform to the requirements
of applicable law; and when duly countersigned by the Company's transfer agent,
and delivered to the Underwriter or upon the order of the Underwriter against
payment of the agreed consideration therefor in accordance with the provision
of the Agreement, the Company Shares and the Preferred Securities to be sold by
the Company and the Trust, respectively, represented thereby will be duly
authorized and validly issued, fully paid and nonassessable, and free of any
preemptive, preferential or other rights to subscribe for or purchase shares of
Common Stock and Preferred Securities, respectively, and, upon delivery to the
Underwriter or upon the order against payment of the agreed consideration
therefor in accordance with the provisions of the Agreement, the Underwriter
will acquire good and marketable title thereto, free and clear of any lien,
claim, security interest, encumbrance, or restriction on transfer (except for
any restriction under the 1933 Act and applicable Blue Sky Laws).
7. The Common Stock is registered under the 1934 Act.
8. The Company is not, nor with the giving of notice or passage of time,
would be, in violation of the Articles of Incorporation or Bylaws or, to such
counsel's knowledge after investigation, in default in any material respect in
the performance of any agreement, lease, franchise, license, permit, mortgage,
deed of trust, evidence of indebtedness or other instrument or document that is
filed as an exhibit to the Registration Statement, to which the Company is
subject or bound.
9. All offers and sales by the Company of its capital stock before the date
hereof were at all relevant times duly registered under or exempt from the
registration requirements of the 1933 Act, and were duly registered under or
the subject of an available exemption from the registration requirements of any
applicable Blue Sky Laws.
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 Underwriter as
provided therein; 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 the Underwriting 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 Underwriting Agreement may be
43
limited by laws or unenforceable as against public policy, as to which no
opinion is expressed, and an implied covenant of good faith and fair dealing.
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 Expense 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).
14. 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 relating to or
affecting creditors' rights generally, general equity principles (whether
considered in a proceeding in equity or at law).
15. The Subordinated Debentures have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance with the
Indenture and delivered and paid for in accordance with the Debenture
Subscription 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 relating to or
affecting creditors' rights generally, general equity principles (whether
considered in a proceeding in equity or at law).
16. Neither the Company nor the Trust is an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
Investment Company Act of 1940, as amended.
44
17. The statements set forth in the Registration Statement under the captions
"Regulation and Supervision," "Description of Preferred Securities,"
"Description of Junior Subordinated Debentures," "Description of Guarantee" and
"Relationship Among the Preferred Securities, the Junior Subordinated
Debentures and the Guarantee," insofar as they purport to describe the
provisions of the laws referred to therein, fairly summarize the legal matters
described therein.
18. 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.
19. The Registration Statement was declared effective under the Securities
Act as of the date and time specified in such order, 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) and, to such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
20. The Registration Statement (including the Rule 430A Information, if
applicable) and the Prospectus and any amendment or supplement thereto (except
for the financial statements and other financial and 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.
21. The documents incorporated by reference in the Prospectus (except for the
financial statements and other financial or statistical data included therein
or omitted therefrom, as to which such counsel expresses 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, complied as
to form in all material respects to the applicable requirements of the 1934 Act
and the 1934 Act Regulations.
22. Such counsel knows of no legal or governmental proceedings pending to
which the Company or any subsidiary is a party or of which any property of the
Company or any subsidiary is the subject that are required to be disclosed in
the Registration Statement or that would affect the consummation of the
transactions contemplated in the Underwriting Agreement, the Indenture or the
Preferred Securities, and such counsel knows of no such proceedings that are
threatened or contemplated by governmental authorities or threatened by others.
23. Such counsel knows of no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described in the
Registration Statement or to be filed as exhibits thereto other than those
described therein or filed or incorporated by reference as exhibits thereto,
and such instruments as are summarized in the Registration Statement are fairly
summarized in all material respect
24. 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 the Underwriting
45
Agreement, the Trust Agreement, the Guarantee Agreement, the Expense 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 the
Underwriting Agreement, the Trust Agreement, the Guarantee Agreement, the
Expense 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.
25. To such counsel's knowledge, the Company and each of its subsidiaries,
including the Bank, each has all material licenses, permits and other
governmental authorizations currently required for the conduct of its business
as presently conducted.
26. The execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and the Indenture,
the issue and sale of the Preferred Securities and the Subordinated Debentures,
the compliance by the Company with the provisions of the Preferred Securities,
the Subordinated Debentures, the Indenture, the Guarantee Agreement and the
Expense Agreement and the Underwriting Agreement and the consummation of the
transactions 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 any subsidiary 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 any 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 condition
(financial or otherwise), earnings, business affairs, assets or business
prospects of 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.
27. 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, in
light of the circumstances under which they were made, 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, or at the Closing Time, included or 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 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 expresses no opinion, and except to the
extent that any statement therein is modified or superceded in the Prospectus
or any subsequently filed
46
document which is incorporated by reference into 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, in light of the circumstances
under which they were made, not misleading.
47
EXHIBIT D
The opinion of counsel, as special Delaware counsel to the Company and the
Trust to be delivered pursuant to Section 5(b)(iii) 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 the Trust Agreement, the Trust has the trust
power and authority to own its property and to 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 Trust 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, when issued against payment therefor as
set forth in the Underwriting Agreement will be, 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.
7. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and Trust Common Securities is not subject to preemptive
rights.
8. The Trust 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.
48
9. The issuance and sale by the Trust of the Preferred Securities and Trust
Common Securities, the purchase by the Trust of the 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.
49
EXHIBIT E
The opinion of counsel to Trust Company and Delaware Trustee to be delivered
pursuant to Section 5(b)(ii) 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 agama 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 affect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
6. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
