Exhibit 1(a)
XXXXXX BANCORP, INC.
(a Delaware corporation)
$o
o% Notes due o
UNDERWRITING AGREEMENT
New York, New York
o, 2001
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Xxxxxx Bancorp, Inc., a Delaware corporation (the "Company"), proposes,
upon the terms and conditions set forth in this underwriting agreement (this
"Agreement") to issue and sell its o% Notes due o in an aggregate principal
amount equal to $o (the "Securities") to o and the other Underwriters set forth
on Schedule I attached hereto (collectively, the "Underwriters"), for whom you
(the "Representatives") are acting as representatives.
The Securities issued in book-entry form will be issued to Cede & Co., as
nominee of The Depository Trust Company ("DTC"), pursuant to a letter
agreement, to be dated as of the Closing Date (as defined herein) (the "DTC
Agreement"), between the Company and DTC.
The Securities will be issued pursuant to an indenture, dated as of o,
2001 (the "Indenture"), between the Company and The Chase Manhattan Bank, as
trustee (the "Indenture Trustee").
The Indenture, the DTC Agreement and this Agreement are collectively
referred to as the "Operative Agreements."
The Company and certain trusts sponsored by the Company have filed with
the Securities and Exchange Commission (the "Commission") a joint registration
statement on Form S-3 (No. 333-o) for the registration of the Securities and
certain other securities described therein under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such Registration Statement has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and the rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations") on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the 1934 Act or the 1934 Act Regulations after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
For purposes of this Agreement, all references to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as of the date hereof and as of
the Closing Date (in each case, a "Representation Date"), as set forth below.
(a) The Company meets the requirements for use of Form S-3 under the
1933 Act and has prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, including a related basic prospectus, for registration under the
1933 Act of the offering and sale of the Securities and certain other
securities. The Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company shall file with the Commission, if
required, one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the 1933 Act and the 1933 Act
Regulations to be included in such registration statement and the Final
Prospectus. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished
to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only
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such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act, the
1934 Regulations and the 1939 Act and the rules and regulations
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the Indenture
did or will comply in all material respects with the applicable
requirements of the 1939 Act and the rules thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any 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; provided, however, that the Company makes no
representations or warranties as to (i) those parts of the Registration
Statement which shall constitute the Indenture Trustee's Statements of
Eligibility and Qualification on Form T-1 (the "Form T-1s") under the 1939
Act or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification.
(d) The Company is duly registered as a savings and loan holding
company under Home Owners' Loan Act of 1933, as amended ("HOLA"); the
Company and each of its subsidiaries are in compliance in all material
respects with all laws administered by and regulations of the Federal
Deposit Insurance Corporation (the "FDIC"), the Office of Thrift
Supervision (the "OTS") and any other federal or state bank regulatory
authorities (collectively with the FDIC and the OTS, the "Bank Regulatory
Authorities") with jurisdiction over the Company or any of its
subsidiaries, other than where any such failure to comply would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries is a party to any written agreement or memorandum of
understanding with, or a party to any commitment letter or similar
undertaking to, or is
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subject to any order or directive by, or is a recipient of any
extraordinary supervisory letter from, or has adopted any board
resolutions at the request of, any Bank Regulatory Authority which
restricts materially the conduct of its business, or in any manner relates
to its capital adequacy, its credit policies or its management, nor have
any of them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting (or considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission, or any such board resolutions.
(e) Xxxxxx Savings Bank (the "Bank") has been duly organized and is
validly existing as a New York State-chartered stock savings bank and is a
member in good standing of the Federal Home Loan Bank of New York; the
Bank's deposit accounts are insured up to applicable limits by the FDIC's
Bank Insurance Fund; and no proceeding for the termination or revocation
of such insurance is pending or, to the knowledge of the Company or the
Bank, threatened.
(f) The Bank is the only "Significant Subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X under the 1933 Act).
(g) Since the date of the most recent financial statements included
or incorporated by reference in the Final Prospectus, there has been no
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
by the Final Prospectus (a "Material Adverse Effect").
(h) As of the date specified in the Final Prospectus, the Company's
duly authorized and validly issued capital is as set forth in the Final
Prospectus in the column entitled "Actual" under the caption
"Capitalization." The Company's shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any securityholder or
the Company.
(i) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Final
Prospectus, all of the outstanding shares of voting capital stock of the
subsidiaries are owned by the Company, either directly or through
wholly-owned subsidiaries, free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
(j) The Indenture has been duly authorized, and, at the Closing Date
will have been duly executed and delivered by the Company and, assuming
due authorization, execution and delivery by the Indenture Trustee, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally
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or by general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(k) The Securities have been duly authorized by the Company for
issuance as contemplated by this Agreement. The Securities, when issued
and authenticated in the manner provided for in the Indenture and
delivered against payment of the consideration therefor in accordance with
the terms of this Agreement, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Securities will be in the form
contemplated by, and each registered holder thereof will be entitled to
the benefits of, the Indenture.
(l) The Securities and the Operative Agreements, as of each
Representation Date, will conform in all material respects to the
statements relating thereto contained in the Final Prospectus and will be
in substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(m) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be, an "investment company" as
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(n) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the 1933 Act and the 1939 Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Final Prospectus.
(o) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, (i) the charter or
by-laws of the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party or
bound or to which its or their property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its or
their properties.
(p) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Final
Prospectus and the
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Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company
and its consolidated subsidiaries as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations and have been prepared in
conformity with United States generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under the
caption "Selected Historical Consolidated Financial Data" in the Final
Prospectus fairly present, on the basis stated in the Final Prospectus,
the information included therein.
(q) KPMG LLP, who have audited certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
included in the Final Prospectus, are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the 1933 Act
Regulations.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) would have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii) would
result in a Material Adverse Effect.
(s) Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or by-laws, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable.
(t) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
Material Adverse Effect and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not result in a Material Adverse Effect.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; there are
no claims by the Company or any of its
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subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights
clause; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any
such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not result in a Material
Adverse Effect.
(v) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any
other distribution on such subsidiary's capital stock, from repaying to
the Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Final Prospectus and applicable banking laws and
regulations.
(w) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(y) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the 1934 Act, the 1934 Act Regulations or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(z) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to
7
receive required permits, licenses or other approvals, or liability would
not, individually or in the aggregate, result in a Material Adverse
Effect. Except as set forth in the Final Prospectus, neither the Company
nor any of the subsidiaries has been named as a "potentially responsible
party" under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(aa) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of the
Company and its subsidiaries are eligible to participate and each such
plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment.
(a) Delivery. Delivery of and payment for the Securities shall be
made on the date which is three Business Days after the Execution Date,
which date and time may be postponed by agreement among the
Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified
by the Company. Delivery of the Securities shall be made through the
facilities of DTC unless the Representatives shall otherwise instruct.
Delivery of the Securities shall be made at such location as o shall
reasonably designate at least one Business Day in advance of the Closing
Date. Certificates for the Securities shall be registered in such names
and in such denominations as o may request not less than two Business Days
in advance of the Closing Date. The Company agrees to have the Securities
available for inspection, checking and packaging by the Representatives in
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Xxx Xxxx, Xxx Xxxx, not later than 1:00 P.M. on the Business Day prior to
the Closing Date.
(b) Payment. Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP,
One World Trade Center, 58th Floor, New York, New York, or at such other
place as shall be agreed upon by the Underwriters and the Trust, at 9:00
A.M. (Eastern time) on the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its respective best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when the
Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the 1933 Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
9
circumstances under which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the 1933 Act, the 1933 Act Regulations, the 1934
Act or the 1934 Act Regulations, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final Prospectus to
you in such quantities as you may reasonably request.
(c) The Company will use the net proceeds received by them from the
sale of the Securities in the manner specified in the Final Prospectus
under "Use of Proceeds."
(d) The Company, during the period when a prospectus relating to the
Securities is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act and the 1934 Act Regulations within the time periods
required thereby.
(e) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement
or statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 under the 1933
Act Regulations.
(f) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by
the 1933 Act, as many copies of each Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc. ("NASD")
in connection with any review by it of the offering; provided, that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(h) The Company will not, without the prior written consent of o,
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company
or any affiliate of the Company or any person in privity with the Company
or any affiliate of the Company) directly or indirectly, including the
filing (or
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participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the 1934 Act, any debt securities issued by the
Company (other than the Securities) or publicly announce an intention to
effect any such transaction, until the Business Day set forth on Schedule
I hereto.
(i) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the 1934 Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of their respective obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 P.M. New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 P.M.
New York City time on such date or (ii) 9:30 A.M. on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 P.M. New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxx Xxxxxx &
Xxxxxxxx LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full corporate
power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Final Prospectus. The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business and where
the failure to be so qualified would, individually or in the
aggregate, result in a Material Adverse Effect.
(ii) The Company is registered as a savings and loan holding
company under HOLA; to its best knowledge, the Company and each of
its subsidiaries are
11
in compliance in all material respects with all laws administered by and
regulations of any Bank Regulatory Authority with jurisdiction over the
Company or any of its subsidiaries, other than where any such failure to
comply would not have a Material Adverse Effect; and, to its best
knowledge, neither the Company nor any of its subsidiaries is a party to
any written agreement or memorandum of understanding with, or a party to
any commitment letter or similar undertaking to, or is subject to any
order or directive by, or is a recipient of any extraordinary supervisory
letter from, or has adopted any board resolutions at the request of, any
Bank Regulatory Authority which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its credit
policies or its management, nor have any of them been advised by any Bank
Regulatory Authority that it is contemplating issuing or requesting (or
considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission, or any such board
resolutions.
(iii) The Bank is validly existing as a New York State-chartered
stock savings bank and is a member in good standing of the Federal
Home Loan Bank of New York; the Bank's deposit accounts are insured
up to applicable limits by the FDIC's Bank Insurance Fund; and, to
its best knowledge, no proceeding for the termination or revocation
of such insurance is pending or, to the knowledge of the Company or
the Bank, threatened.
(iv) To the best of its knowledge, the Bank is the only
"Significant Subsidiary" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X under the 1933 Act).
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Indenture has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and
to general principles of equity or law, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether considered in a proceeding in
equity or at law).
(vii) The Securities have been duly authorized, executed and
delivered by the Company for issuance and, when executed and
authenticated in the manner provided for in the Indenture and
delivered against payment for the consideration therefor in
accordance with the terms of this Agreement, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles
12
(regardless of whether enforcement is considered in a proceeding in equity
or at law). The Securities are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the Indenture.
(viii) The Securities and the Operative Agreements conform in
all material respects to the statements relating thereto contained in
the Final Prospectus and, to the extent applicable, are in
substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(ix) The Registration Statement and the Final Prospectus,
excluding the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and Final
Prospectus, excluding the documents incorporated by reference
therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules and other financial
data included therein or omitted therefrom and each Form T-1, as to
which such counsel need express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(x) The documents incorporated by reference in the Final
Prospectus (other than the financial statements and supporting
schedules and other financial data included therein or omitted
therefrom, as to which such counsel need express no view), when they
became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
or the 1934 Act Regulations, as applicable.
(xi) The Registration Statement has become effective under the
1933 Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened; and such counsel has
no reason to believe that on the Effective Date or the date the
Registration Statement was last deemed amended, the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and
other financial information contained therein and each Form T-1, as
to which such counsel need express no view).
(xii) The Indenture has been duly qualified under the 1939 Act.
13
(xiii) (A) The statements included in the Final Prospectus under
the headings "Certain United States Federal Income Tax Consequences,"
and "Supervision and Regulation" and the statements incorporated by
reference in the Final Prospectus from the Company's most recent
Annual Report on Form 10-K under the heading "Supervision and
Regulation," in each case, insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements,
documents or proceedings and (B) The statements in the Registration
Statement and the Final Prospectus, insofar as they are descriptions
of contracts, agreements, instruments or the Company's Certificate
of Incorporation or legal proceedings, or constitute statements or
summaries of United States federal, New York State laws or the
General Corporation Law of the State of Delaware or legal conclusions
with respect thereto, are accurate and present fairly the information
required to be shown.
(xiv) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will not be,
an "investment company" as defined in the 1940 Act.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, the Federal laws of the United States or the General
Corporation Law of the State of Delaware, to the extent they deem proper
and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company
and public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused R. Xxxxxxx Xxxxx,
General Counsel and Secretary of the Company, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of the Company's subsidiaries is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized with full corporate power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification.
(ii) As of the date specified in the Final Prospectus, the
Company's duly authorized and validly issued capital is as set forth
in the Final Prospectus in the column entitled "Actual" under the
caption "Capitalization." Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was
14
issued in violation of preemptive or other similar rights of any
securityholder or the Company.
(iii) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable (except as provided in
statutes pursuant to which depository institution subsidiaries are
subject), and, except as otherwise set forth in the Final Prospectus,
a controlling majority of the outstanding shares of voting capital
stock of the subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(iv) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the 1933 Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such
other approvals (specified in such opinion) as have been obtained.
(v) Neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries pursuant to, (A) the
charter or by-laws of the Company or its subsidiaries, (B), to its
best knowledge, the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or its subsidiaries is a party or bound or to which its or
their property is subject, or (C) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or its subsidiaries or any of its or their
properties.
(vi) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or their respective property,
of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a character required
to be described in the Registration Statement or Final Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as
required.
(d) The Representatives shall have received from Sidley Xxxxxx Xxxxx
& Wood LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and
15
addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Operative Agreements, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate signed by the Chief Executive Officer and the principal
financial or accounting officer of the Company, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no Material
Adverse Effect.
(f) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date, letters, (which may refer to letters previously delivered to one or
more of the Representatives), dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the 1933 Act, the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations and that they have performed a review of the
unaudited interim financial information of the Company for the [three-,
six- and nine-month periods ended o, o and o,] in accordance with
Statement on Auditing Standards No. 71, and stating in effect that:
(i) in their opinion the consolidated financial statements
audited by them and included in the Company's Annual Report on Form
10-K at December 31, o and incorporated by reference in the
Registration Statement and the Final Prospectus comply as to form in
all material respects with the applicable accounting requirements of
the 1933 Act, 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company of the unaudited interim
financial information for the o-month period ended o, 2001 and as at
o, 2001 performing the procedures specified by the American Institute
of Certified Public
16
Accountants for a review of interim financial information as
described in SAS 71 Interim Financial Information (but not an
examination in accordance with auditing standards generally accepted
in the United States), which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter, a
reading of the minutes of the meetings of the shareholders and Board
of Directors of the Company as set forth in the minute books through
a specified date not more than three days prior to the date of the
letter; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company as
to transactions and events subsequent to o, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the 1933 Act
and with the 1933 Act Regulations with respect to financial
statements included or incorporated by reference in quarterly
reports on Form 10-Q under the 1934 Act, and said unaudited
financial statements are not in conformity with accounting
principles generally accepted in the United States applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated by reference in
the Registration Statement and the Final Prospectus;
(2) at o, there were any changes in common stock, increase
in consolidated long-term debt, decrease in consolidated
shareholders' equity, consolidated total assets or consolidated
allowance for loan losses, as compared with the amounts shown on
the o unaudited statement of condition included or incorporated
by reference in the Registration Statement and the Final
Prospectus, or for the period from o to o, there was any
decrease, as compared with the corresponding periods in the
preceding year, in consolidated revenues (which consist of total
consolidated interest income and total non-interest income),
consolidated net interest income before provision for loan
losses, consolidated income before provision for income taxes
and extraordinary item or in total or per-share amount of
consolidated net income, except in all instances for changes,
increases, or decreases that that Registration Statement
discloses have occurred or may occur and except in all instances
for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not
deemed necessary by the Representatives; and
(3) the information included or incorporated by reference
in the Registration Statement and Final Prospectus in response
to Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio
17
of Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
(iii) with respect to the period from o to o they have:
(1) read the unaudited consolidated financial statements of
the Company for the o months ended o of both 2001 and 2000
furnished to them by the Company, officials of the Company have
advised them that no such consolidated financial statements as
of any date or for any period subsequent to o were available;
and
(2) inquired of certain officials of the Company who have
the responsibility for financial and accounting matters as to
whether the unaudited consolidated financial statements referred
to in (iii) (1) are stated on a basis substantially consistent
with that of the audited consolidated financial statements
incorporated by reference in the Registration Statement; and
(iv) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
set forth under the captions "Consolidated Ratios of Earnings to
Fixed Charges and Preferred Stock Dividends," "Capitalization" and
"Selected Historical Consolidated Financial Data" in the Final
Prospectus, the information included or incorporated by reference in
Items 1, 2, 6, 7 and 11 of the most recent Company's Annual Report on
Form 10-K and incorporated by reference in the Registration Statement
and the Final Prospectus, the information included in the
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q and incorporated by
reference in the Registration Statement and the Final Prospectus,
[the information included in Item 7 of the Company's Reports on Form
8-K filed on o incorporated by reference in the Registration
Statement and Final Prospectus, certain financial information about
the Company included in the Company's Form 8-K filed on o
incorporated by reference in the Registration Statement and the Final
Prospectus and certain financial information regarding the
calculation of the Company's ratio of earnings to fixed charges and
preferred stock dividends on the Company's Form 8-K to be filed prior
to the Closing Date and to be incorporated by reference in the
Registration Statement and the Final Prospectus,] agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
18
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus, there shall not have been (i)
any change or decrease specified in the letter or letters referred to in
paragraph (i) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Final Prospectus the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement and the Final Prospectus.
(h) At the Closing Date, the Securities shall be rated in one of the
four highest rating categories for long-term debt by Standard & Poor's
Ratings Services and by Xxxxx'x Investors Service, Inc., and the Company
shall have delivered to the Underwriters a letter, dated as of such date,
from each such rating organization, or other evidence satisfactory to the
Underwriters, confirming that the Securities have such ratings. Since the
time of execution of this Agreement, there shall not have occurred a
downgrading in, or withdrawal of, the rating assigned to the Securities or
any of the Company's securities or financial strength by any such rating
organization or any other "nationally recognized statistical rating
organization," as defined for purposes of Rule 436(g)(2) under the 1933
Act Regulations, and no such rating organization shall have publicly
announced that it has under surveillance or review with negative
implications its rating of the Securities or any of the Company's
securities or financial strength.
(i) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be
given to the Company in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, at Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to
19
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through o on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the 1933 Act, the 1934 Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in
any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or
on behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its respective directors,
respective officers, employees and agents who signs the Registration
Statement, and each person who controls the Company within the meaning of
either the 1933 Act or the 1934 Act, to the same extent as the foregoing
indemnity in paragraph (a) above from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company and
the Underwriters acknowledge that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities and,
under the heading "Underwriting," (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraphs related
to stabilization, syndicate covering transactions and penalty bids in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the
20
several Underwriters for inclusion in any Preliminary Final Prospectus or
the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses")
to which the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities;
21
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased
by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions (before deducting
expenses), in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the 1933
Act or the 1934 Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the 1933 Act or the 1934 Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of Securities set
forth opposite their names in Schedule II hereto bears to the number of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the number of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the number of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the
22
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Securities shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities generally
on the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on either of
such exchange or the Nasdaq National Market, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its respective officers or trustees and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to o (fax no.: o) and confirmed to o, at o, Attention:
o; or, if sent to the Company, will be mailed, delivered or telefaxed to Xxxxxx
Bancorp, Inc., o. (fax no.: o) and confirmed to R. Xxxxxxx Xxxxx, General
Counsel of Xxxxxx Bancorp, Inc., Xxx Xxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxx, XX
00000-0000.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
23
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the 1933 Act.
24
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
XXXXXX BANCORP, INC.
By: _________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
o
By: o
By: ______________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
26
SCHEDULE I
Underwriting Agreement dated: o, 2001
Registration Statement No. 333-o
Representative(s): o
Closing Date: o
Title: o% Notes due o
Aggregate principal amount: $o
Stated maturity: o
Interest rate: o% per annum
Interest payment dates: o and o of each year, commencing o
Record dates: The o calendar day of the month immediately
prior to the month in which each interest
payment date falls.
Redemption provisions: [The Securities are not redeemable prior to
maturity.]
Initial public offering price: o% of the aggregate principal amount thereof
plus accumulated interest, if any, from o
Purchase price: o% of the aggregate principal amount thereof
plus accumulated interest, if any, from o
Underwriters' commission: o% of the aggregate principal amount thereof
Form: Book-entry only
Type of Offering: Non-delayed
Date referred to in Section 5(h) after which the Company may offer or sell
Securities issued by the Company without the consent of the Representative(s):
o.
I-1
Modification of items to be covered by the letter from
KPMG LLP delivered pursuant to
Section 6(g) at the Execution Time: o
I-2
SCHEDULE II
Aggregate
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
o........................................ $ o
o........................................ o
o........................................ o
o........................................ o
o........................................ o
----------------
Total............................. $ o
================
II-1
