FIRST INTERNATIONAL BANCORP, INC.
1,700,000 SHARES/1/
Common Stock
UNDERWRITING AGREEMENT
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September ___, 1997
PRUDENTIAL SECURITIES INCORPORATED
XXXXX, XXXXXXXX & XXXXX, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
First International Bancorp, Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with the several underwriters named in Schedule A
hereto (the "Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), as set forth below.
If you are the only Underwriters, all references herein to the Representatives
shall be deemed to be to the Underwriters.
1. SECURITIES. Subject to the terms and conditions herein contained, the
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Company proposes to issue and sell to the several Underwriters an aggregate of
1,700,000 shares (the "Firm Securities") of the Company's Common Stock, par
value $0.10 per share ("Common Stock"). The Company also proposes to issue and
sell to the several Underwriters not more than 255,000 additional shares of
Common Stock if requested by the Representatives as provided in Section 3 of
this Agreement. Any and all shares of Common Stock to be purchased by the
Underwriters pursuant to such option are referred to herein as the "Option
Securities," and the Firm Securities and any Option Securities are collectively
referred to herein as the "Securities."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
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and warrants to, and agrees with, each of the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-31339) with respect
to the Securities, including a prospectus subject to completion, has been filed
by the Company with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), and one or more
amendments to such registration statement may have been so filed. After the
execution of this Agreement, the Company will file with the Commission either
(i) if such registration statement, as it may have been amended, has been
declared by the Commission to be
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/1/ Plus an option to purchase from First International Bancorp, Inc. up to
255,000 additional shares to cover over-allotments.
effective under the Act, either (A) if the Company relies on Rule 434 under
the Act, a Term Sheet (as hereinafter defined) relating to the Securities,
that shall identify the Preliminary Prospectus (as hereinafter defined)
that it supplements containing such information as is required or permitted
by Rules 434, 430A and 424(b) under the Act or (B) if the Company does not
rely on Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or
permitted by Rule 424(b) under the Act, and in the case of either clause
(i)(A) or (i)(B) of this sentence as have been provided to and approved
without unreasonable delay by the Representatives prior to the execution of
this Agreement, or (ii) if such registration statement, as it may have been
amended, has not been declared by the Commission to be effective under the
Act, an amendment to such registration statement, including a form of
prospectus, a copy of which amendment has been furnished to and approved
without unreasonable delay by the Representatives prior to the execution of
this Agreement. The Company may also file a related registration statement
with the Commission pursuant to Rule 462(b) under the Act for the purpose
of registering certain additional Securities, which registration shall be
effective upon filing with the Commission. As used in this Agreement, the
term "Original Registration Statement" means the registration statement
initially filed relating to the Securities, as amended at the time when it
was or is declared effective, including all financial schedules and
exhibits thereto and including any information omitted therefrom pursuant
to Rule 430A under the Act and included in the Prospectus (as hereinafter
defined); the term "Rule 462(b) Registration Statement" means any
registration statement filed with the Commission pursuant to Rule 462(b)
under the Act (including the Registration Statement and any Preliminary
Prospectus or Prospectus incorporated therein at the time such Registration
Statement becomes effective); the term "Registration Statement" includes
both the Original Registration Statement, any amendments thereto and any
Rule 462(b) Registration Statement; the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such registration
statement or any amendment thereto (including the prospectus subject to
completion, if any, included in the Registration Statement or any amendment
thereto at the time it was or is declared effective); the term "Prospectus"
means:
(A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule 424(b)(7)
under the Act, together with the Preliminary Prospectus identified therein
that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the prospectus
first filed with the Commission pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424(b) under the Act,
the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending use
of any Preliminary Prospectus. When any Preliminary Prospectus was filed with
the Commission it (i)
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contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder and (ii) did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
When the Registration Statement or any amendment thereto was or is declared
effective, it (i) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (ii) did not or will not
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading.
When the Prospectus or any Term Sheet that is a part thereof or any
amendment or supplement to the Prospectus is filed with the Commission
pursuant to Rule 424(b) (or, if the Prospectus or part thereof or such
amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such amendment
or supplement to the Prospectus was or is declared effective) and on the
Firm Closing Date and any Option Closing Date (both as hereinafter
defined), the Prospectus, as amended or supplemented at any such time, (i)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with
the requirements of, the Act and the rules and regulations of the
Commission thereunder and (ii) did not or will not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing provisions of
this paragraph (b) do not apply to statements or omissions made in any
Preliminary Prospectus, the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, which
information consists of the information identified in Section 12 hereof.
(c) If the Company has elected to rely on Rule 462(b) and the Rule 462(b)
Registration Statement has not been declared effective (i) the Company has filed
a Rule 462(b) Registration Statement in compliance with and that is effective
upon filing pursuant to Rule 462(b) and has received confirmation of its receipt
and (ii) the Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under the Act or
the Commission has received payment of such filing fee .
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of Delaware, and its subsidiary,
First National Bank of New England, a national banking association (the
"Subsidiary"), has been duly organized and is validly existing as a national
banking association under the laws of the United States. The Subsidiary is the
only active subsidiary, direct or indirect, of the Company. FNBNE SBA Holdings,
Inc. ("FNBNE"), which is inactive, is the only subsidiary of the Subsidiary. The
Company conducts no other business other than owning the stock of the
Subsidiary. The Company does not control, directly or indirectly, any
corporation (other than the Subsidiary and FNBNE), partnership, joint venture,
association or other business organization. The Company and its Subsidiary are
duly qualified to transact business as foreign corporations and are in corporate
good standing under the laws of all other states where the ownership or leasing
of their respective properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so qualified
considering all such cases in the aggregate would not have a material adverse
effect upon the assets or properties, business
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prospects, results of operations or financial condition of the Company and the
Subsidiary, taken as a whole. The Subsidiary continues to hold a valid
certificate to do business as a national banking association and has full power
and authority to conduct its business as such and as described in the
Registration Statement and, except as disclosed in the Registration Statement.
(e) Each of the Company and the Subsidiary is in compliance in all
material respects with all applicable laws administered by and regulations of
the Board of Governors of the Federal Reserve System (the "Board"), the Office
of the Comptroller of the Currency (the "OCC"), the Federal Deposit Insurance
Corporation (the "FDIC") and any state bank regulatory authority with
jurisdiction over the Company or the Subsidiary, as the case may be ("Bank
Regulatory Authorities"), the failure to comply with which would have a material
adverse effect upon the assets or properties, business prospects, results of
operations or financial condition of the Company and the Subsidiary, taken as a
whole. Neither the Company nor the Subsidiary 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 an order or directive by, or
is a recipient of any extraordinary supervisory letter from any Bank Regulatory
Authority, specifically directed at the Company and the Subsidiary, 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 in writing by any Bank Regulatory Authority that it is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or similar
submission, specifically directed at the Company and the Subsidiary.
(f) The Company and the Subsidiary have full corporate power to own or
lease their respective properties and conduct their respective businesses as
described in the Registration Statement and the Prospectus or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus; and the Company has
full corporate power to enter into this Agreement and to carry out all the terms
and provisions hereof to be carried out by it.
(g) The issued shares of capital stock of the Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable and, except as
otherwise set forth in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) are owned beneficially by the
Company free and clear of any security interests, liens, encumbrances, equities
or claims.
(h) The Company has an authorized, issued and outstanding capitalization
as set forth in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus). All of the issued shares of capital stock
of the Company have been duly authorized and validly issued and are fully paid
and nonassessable. The Firm Securities and the Option Securities have been duly
authorized and at the Firm Closing Date or the related Option Closing Date (as
the case may be), after payment therefor in accordance herewith, will be validly
issued, fully paid and nonassessable. No holders of outstanding shares of
capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities, and no holder of securities of
the Company has or will have any right which has not been fully exercised or
waived to require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by this
Agreement.
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(i) The capital stock of the Company and the Securities to be sold by the
Company conform to the description thereof contained in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(j) Except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no outstanding (A)
securities or obligations of the Company or the Subsidiary convertible into or
exchangeable for any capital stock of the Company or the Subsidiary, (B)
warrants, rights or options to subscribe for or purchase from the Company or the
Subsidiary any such capital stock or any such convertible or exchangeable
securities or obligations, or (C) obligations of the Company or the Subsidiary
to issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(k) The consolidated financial statements and schedules of the Company and
its Subsidiary included in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus)
fairly present the financial position of the Company and its Subsidiary and the
results of operations and changes in financial condition as of the dates and
periods therein specified. Such financial statements and schedules have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the captions "Summary" and
"Selected Consolidated Financial Data" in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) fairly present, on
the basis stated in the Prospectus (or such Preliminary Prospectus), the
information included therein.
(l) Coopers & Xxxxxxx L.L.P., who have certified certain financial
statements of the Company and the Subsidiary and delivered their report with
respect to the audited consolidated financial statements and schedules included
in the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), are independent public
accountants as required by the Act and the applicable rules and regulations
thereunder.
(m) The execution and delivery of this Agreement have been duly authorized
by the Company and this Agreement has been duly executed and delivered by the
Company, and is the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms; except (i) as enforceability
hereof may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws relating to or affecting creditor's
rights generally and by general equitable principles and (ii) that enforcement
of rights to indemnity and contribution hereunder may be limited by federal or
state securities or principles of public policy.
(n) No legal or governmental proceedings or other proceedings or
investigations are pending to which the Company or the Subsidiary is a party or
to which the property of the Company or the Subsidiary is subject that are
required to be described in the Registration Statement or the Prospectus and are
not described therein (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), and, to the knowledge of the Company, no such
proceedings have been threatened against the Company or the Subsidiary or with
respect to any of their respective properties; and no contract or other document
is required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that is not described
therein (or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) or filed as required under
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the Act. Assuming due authorization, execution and delivery by each other party
thereto, all such contracts to which the Company or the Subsidiary is a party
constitute valid and binding agreements of the Company or the Subsidiary, as the
case may be. Neither the Company, the Subsidiaries, nor to Company's knowledge,
any other party is in material default in the or performance of any material
term or obligation to be performed by it under any agreement filed as an exhibit
to the Registration Statement, and no event has occurred which with notice or
lapse of time or both would constitute such a default, in any such case where
such default or event would have a material adverse effect on the assets or
properties, results of operations, business prospects or financial condition of
the Company and the Subsidiary, taken as a whole. No material default exists,
and no event has occurred which with notice or lapse of time or both would
constitute a material default, in the due performance and observance of any
material term, covenant or condition, by the Company or the Subsidiary of any
other agreement or instrument to which the Company or the Subsidiary is party or
by which it or its properties or business may be bound or affected which default
or event would have a material adverse effect on the assets or properties,
results of operations, business prospects or financial condition of the Company
and the Subsidiary, taken as a whole.
(o) The issuance, offering and sale of the Securities to the Underwriters
by the Company pursuant to this Agreement, the compliance by the Company or the
Subsidiary, as the case may be, with the other provisions of this Agreement and
the consummation of the other transactions herein contemplated hereby or thereby
do not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the Securities (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
or (ii) give rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any liens, charge or
encumbrance upon any properties or assets of the Company or the Subsidiary
pursuant to the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or the Subsidiary is a party or by
which the Company or the Subsidiary or any of their properties or businesses are
bound, or any franchise, license, permit, judgment, ruling, decree, order,
statute, rule or regulation applicable to the Company, or (iii) the charter
documents or by-laws of the Company or the Subsidiary, or (iv) any statute or
any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or the
Subsidiary, other than as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), except in each case
for such conflicts, breaches, violations and defaults which, considering all
such cases in the aggregate, would not have a material adverse effect on the
assets or properties, results of operations, business prospects or financial
condition of the Company and the Subsidiary, taken as a whole, or affect the
validity of the Shares.
(p) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), except as otherwise stated
therein, (i) the Company and the Subsidiary have not incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction, not in the ordinary course of business; (ii) the Company and the
Subsidiary have not sustained any
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material loss or interference with their businesses or properties from fire,
flood, accident or other calamity, whether or not covered by insurance, or from
any labor dispute or any legal or governmental proceeding, order or decree;
(iii) there has not been any material adverse change, or any development
involving a prospective material adverse change, in the assets or properties,
business prospects, results of operations or financial condition of the
Company and the Subsidiary, taken as a whole; (iv) the Company and the
Subsidiary have not purchased any of their outstanding capital stock, and except
for (a) regular quarterly cash dividends on the Common Stock as determined by
the Board of Directors of the Company, (b) regular or special dividends paid by
the Subsidiary to the Company and (c) the 3.5-for-1 stock split approved by the
Company on June 26, 1997, (d) the grant of options pursuant to employee stock
option plans to purchase shares of the capital stock of the Company, nor
declared, paid or otherwise made any dividend or distribution of any kind on
their capital stock; and (v) there has not been any material change in the
capital stock (other than additional issuances), debt or long-term debt of the
Company and the Subsidiary; in the case of each of clauses (i) through (v)
except as described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(q) The Company has not, directly or indirectly, (i) taken any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(r) The Company has not distributed and, prior to the later of (i) the
Closing and (ii) the completion of the distribution of the Securities, will not
distribute any offering material in connection with the offering and sale of the
Securities other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or other materials, if any permitted by the Act.
(s) The Company and the Subsidiary have valid title in fee simple to all
items of real property and valid title to all personal property owned by each of
them, in each case free and clear of any security interests, liens,
encumbrances, claims and other material defects, except such as do not
materially and adversely affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the
Company or the Subsidiary, and any real property and buildings held under lease
by the Company or the Subsidiary are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such property
and buildings by the Company or the Subsidiary, in each case except as described
in or contemplated by the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(t) No labor dispute with the employees of the Company or the Subsidiary
exists or, to the knowledge of the Company, is threatened or imminent that could
reasonably be expected to result in a material adverse change in the assets or
properties, business prospects, results of operations or financial condition
of the Company and the Subsidiary, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
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(u) To the knowledge of the Company, each of the Company and the
Subsidiary owns, possesses, has currently subsisting licenses to use all
material trademarks, service marks, trade names, copyrights and proprietary or
other confidential information necessary to carry on its business as presently
operated by it, and neither the Company nor the Subsidiary has received any
written notice of infringement of or conflict with asserted rights of any third
party with respect to any of the foregoing which in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the assets or properties, business prospects, results
of operations or financial condition of the Company and the Subsidiary,
taken as a whole, except as described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(v) The Company and the Subsidiary maintains insurance of the types and in
the amounts which it deems adequate for its business, including but not limited
to, insurance coverage covering real and personal property owned or leased by
the Company or the Subsidiary against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(w) The Subsidiary is not currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other distribution on
its capital stock, from repaying to the Company any loans or advances to the
Subsidiary from the Company or from transferring any of the Subsidiary's
property or assets to the Company, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(x) Each of the Company and the Subsidiary possess all certificates,
consents, authorizations and permits ("Licenses") issued by the appropriate
international, federal, state or foreign regulatory and self-regulatory
authorities necessary to conduct their respective businesses, except for those
of which the failure to obtain would not result in a material adverse change in
the assets or properties, business prospects, results of operations or financial
condition of the Company and the Subsidiary, taken as a whole, and except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). All Licenses are valid and
in full force and effect and the Company and the Subsidiary are in compliance
with all laws, regulations, orders and decrees applicable to them, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and except for those, the
absence of which, would not cause a material adverse change in the assets or
properties, business prospects, results of operations or financial condition of
the Company and the Subsidiary, taken as a whole. Neither the Company nor the
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 change in the assets or properties, business
prospects, results of operations or financial condition of the Company and the
Subsidiary, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(y) The Company will conduct its operations in a manner that will not
subject it to registration as an investment company under the Investment Company
Act of 1940, as amended, and
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this transaction will not cause the Company to become an investment company
subject to registration under such Act.
(z) Each of the Company and the Subsidiary has filed all necessary
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 on the Company and the Subsidiary)
and has paid all taxes as shown on said returns as due thereon and any other
assessment, fine or penalty levied, 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 described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and any assessment, fine or penalty, considering all
such cases in the aggregate, which, if imposed, would not have a material
adverse effect upon the assets or properties, business prospects, results of
operations or financial condition of the Company and the Subsidiary, taken as a
whole.
(aa) Any certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty jointly and severally made by the Company to each
Underwriter as to the matters covered thereby and shall be deemed incorporated
herein in its entirety and shall be effective as if such representation and
warranty were made herein.
(bb) Each of the Company and the Subsidiary 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.
(cc) All employee benefit plans (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) established,
maintained or contributed to by the Company comply in all material respects with
the requirements of ERISA and no employee pension benefit plan (as defined in
Section 3(2) of ERISA) has incurred or assumed an "accumulated funding
deficiency" within the meaning of Section 302 of ERISA or has incurred or
assumed any material liability (other than for the payment of premiums) to the
Pension Benefit Guaranty Corporation, except where such non-compliance,
deficiency or liability will not have a material adverse effect on the Company
and the Subsidiary, taken as a whole.
(dd) No transaction has occurred between or among the Company or any of its
affiliates, officers or directors or any affiliate or affiliates of any such
officer or director that is required to be described in and is not described in
the Registration Statement and the Prospectus.
(ee) The Shares have been duly authorized for quotation on the National
Association of Securities Dealers Automated Quotation National Market System
("NASDAQ"), subject to official notice of issuance, and a registration statement
has been filed on Form 8-A pursuant to Section 12 of
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the Exchange Act for the Shares, which registration statement complies in all
material respects with the Exchange Act.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
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(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters, severally and not jointly, agrees to purchase from the
Company, at a purchase price of $________ per share, the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule A hereto.
One or more certificates in definitive form for the Firm Securities that the
several Underwriters have agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by wire transfer in same-day
funds (the "Wired Funds") to the account of the Company. Such delivery of and
payment for the Firm Securities shall be made at the offices of Stroock &
Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:30 A.M., New
York time, on September __, 1997, or at such other place, time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, such time and date of delivery against
payment being herein referred to as the "Firm Closing Date". The Company will
make such certificate or certificates for the Firm Securities available for
checking and packaging by the Representatives at the offices in New York, New
York of the Company's transfer agent or registrar or of Prudential Securities
Incorporated at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Securities as contemplated by the Prospectus,
the Company hereby grants to the several Underwriters an option to purchase,
severally and not jointly, the Option Securities. The purchase price to be paid
for any Option Securities shall be the same price per share as the price per
share for the Firm Securities set forth above in paragraph (a) of this Section
3, plus if the purchase and sale of any Option Securities takes place after the
Firm Closing Date and after the Firm Securities are trading "ex-dividend," an
amount equal to the dividends payable on such Option Securities. The option
granted hereby may be exercised as to all or any part of the Option Securities
from time to time within 30 days after the date of the Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Securities prior to the exercise of such option. The Representatives may from
time to time exercise the option granted hereby by giving notice in writing or
by telephone (confirmed in writing) to the Company setting forth the aggregate
number of Option Securities as to which the several Underwriters are then
exercising the option and the date and time for delivery of and payment for such
Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and Company
may agree upon or as the Representatives may determine pursuant to Section 9
hereof, is herein called the "Option Closing Date" with respect to such
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Option Securities. Upon exercise of the option as provided herein, the Company
shall become obligated to sell to each of the several Underwriters, and, subject
to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the Company,
the same percentage of the total number of the Option Securities as to which the
several Underwriters are then exercising the option as such Underwriter is
obligated to purchase of the aggregate number of Firm Securities, as adjusted by
the Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company hereby acknowledges that the wire transfer by or on behalf
of the Underwriters of the purchase price for any Shares does not constitute
closing of a purchase and sale of the Shares. Only execution and delivery of a
receipt for Shares by the Underwriters indicates completion of the closing of a
purchase of the Shares from the Company. Furthermore, in the event that the
Underwriters wire funds to the Company prior to the completion of the closing of
a purchase of Shares, the Company hereby acknowledges that until the
Underwriters execute and deliver a receipt for the Shares, by facsimile or
otherwise, the Company will not be entitled to the wired funds and shall return
the wired funds to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of
Shares is not completed and the wire funds are not returned by the Company to
the Underwriters on the same day the wired funds were received by the Company,
the Company agrees to pay to the Underwriters in respect of each day the wire
funds are not returned by it, in same-day funds, interest on the amount of such
wire funds in an amount representing the Underwriters' cost of financing as
reasonably determined by Prudential Securities Incorporated.
(d) It is understood that either of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such Underwriter
or Underwriters from any of its or their obligations hereunder.
4. OFFERING BY THE UNDERWRITERS. Upon your authorization of the release
----------------------------
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with each
------------------------
of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required, the
Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to the Securities is required to
be delivered under the Act, the Company (i)
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will comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement of which the
Representatives previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which filing
the Representatives shall not have given their reasonable consent. The Company
will prepare and file with the Commission, in accordance with the rules and
regulations of the Commission, promptly upon reasonable request by the
Representatives or counsel for the Underwriters, any amendments to the
Registration Statement or amendments or supplements to the Prospectus that may
be reasonably necessary or advisable in connection with the distribution of the
Securities by the several Underwriters, and will use its best efforts to cause
any such amendment to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the Representatives,
promptly after receiving notice thereof, of the time when the Registration
Statement or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and will
provide evidence satisfactory to the Representatives of each such filing or
effectiveness.
(b) The Company will advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (i) the issuance by the Commission of
any stop order suspending the effectiveness of the Original Registration
Statement or any Rule 462(b) Registration Statement or any amendment thereto or
any order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, (ii) the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, (iii)
the institution, threatening or contemplation of any proceeding for any such
purpose or (iv) any request made by the Commission for amending the Original
Registration Statement or any Rule 462(b) Registration Statement, for amending
or supplementing the Prospectus or for additional information. The Company will
use its best efforts to prevent the issuance of any such stop order and, if any
such stop order is issued, to obtain the withdrawal thereof as promptly as
possible.
(c) The Company will arrange, through blue sky counsel, for the
qualification of the Securities for offering and sale under the securities or
blue sky laws of such jurisdictions as the Representatives may designate and
will continue such qualifications in effect for as long as may be necessary to
complete the distribution of the Securities, provided, however, that in
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connection therewith the Company shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would 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, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the rules or
regulations of the Commission thereunder, the Company will promptly notify the
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Representatives thereof and, subject to Section 5(a) hereof, will prepare and
file with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the Representatives
and to counsel for the Underwriters a conformed copy of the registration
statement originally filed with respect to the Securities and each amendment
thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Company, not
later than (A) 6:00 PM, New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to 10:00 A.M.,
New York City time, on such date or (B) 2:00 PM, New York City time, on the
business day following the date of determination of the public offering price,
if such determination occurred after 10:00 A.M., New York City time, on such
date, will deliver to the Underwriters, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as the Representatives may
reasonably request for purposes of confirming orders that are expected to settle
on the Firm Closing Date. The Company will provide or cause to be provided to
each of the Representatives, and to each Underwriter that so requests in
writing, a copy of each report on Form SR filed by the Company as required by
Rule 463 under the Act.
(f) The Company, as soon as practicable, will make generally available to
its securityholders and to the Representatives a consolidated earnings statement
of the Company and the Subsidiary that satisfies the provisions of Section 11(a)
of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the prior
written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant option
to purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of any option to purchase or other sale or
disposition) of any shares of Common Stock or any securities convertible into,
or exchangeable or exercisable for, shares of Common Stock for a period of 180
days after the date hereof, except pursuant to this Agreement and except for
grants pursuant to the Company's stock option plans (provided that any such
options will be subject to the same lock-up restrictions), issuances pursuant to
the exercise of employee stock options or warrant outstanding on the date hereof
or pursuant to the Company's dividend reinvestment plan.
(i) The Company will not, directly or indirectly, (i) take any action
designed cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
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Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) The Company will obtain the agreements described in Section 7(f)
hereof prior to the Firm Closing Date.
(k) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in your opinion the market price of the Common Stock has been
or is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after notice from you advising the Company to the
effect set forth above, and, if determined necessary by the Company following
such consultation, forthwith prepare, consult with you concerning the substance
of, and, disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor, publication or
event.
(l) If the Company elects to rely on Rule 462(b), the Company shall both
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated
under the Act by the earlier of (i) 10:00 P.M. Eastern time on the date of this
Agreement and (ii) the time confirmations are sent or given, as specified by
Rule 462(b)(2).
(m) The Company will cause the Securities to be duly included for
quotation on the Nasdaq National Market prior to the Firm Closing Date. The
Company will use its best efforts to ensure that the Securities remain included
for quotation on the Nasdaq National Market or any national securities exchange
for a reasonable period of time following the Firm Closing Date.
6. EXPENSES. The Company covenants and agrees that it will pay or cause to
--------
be the following: (i) the printing or other production of documents with respect
to the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto, any
Rule 462(b) Registration Statement, any Preliminary Prospectus and the
Prospectus and any amendment or supplement thereto, this Agreement and any blue
sky memoranda, (ii) all arrangements relating to the delivery to the
Underwriters of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriters relating thereto, not to exceed
$4,500, (vi) the filing fees of the Commission and the National Association of
Securities Dealers, Inc. (the "NASD") relating to the Securities, (vii) any
quotation of the Securities on the Nasdaq National Market, (viii) the Company's
costs and expenses in connection with any meetings with prospective investors in
the Securities (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters) and (ix) advertising
relating to the offering of the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the
Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the
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Underwriters set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated pursuant to Section 11 hereof or because of any failure,
refusal or inability on the part of the Company to perform all obligations and
satisfy all conditions on its part to be performed or satisfied hereunder other
than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including counsel fees and disbursements) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement. It is understood, however, that except as provided in this
Section 6, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
-------------------------------------------
several to purchase and pay for the Firm Securities shall be subject, in the
Representatives' sole discretion, to the accuracy of the representations and
warranties of the Company contained herein as of the date hereof and as of the
Firm Closing Date, as if made on and as of the Firm Closing Date, to the
accuracy of the statements of the Company's officers made pursuant to the
provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto filed
prior to the Firm Closing Date has not been declared effective as of the time of
execution hereof, the Original Registration Statement or such amendment and, if
the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have been declared effective not later than the earlier of (i)
11:00 A.M., New York time, on the date on which the amendment to the
registration statement originally filed with respect to the Securities or to the
Registration Statement, as the case may be, containing information regarding the
initial public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission in
the manner and within the time period required by Rules 434 and 424(b) under the
Act; no stop order suspending the effectiveness of the Registration Statement or
any amendment thereto shall have been issued, and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of the
Company or the Representatives, shall be contemplated by the Commission; and the
Company shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Xxxxxxx, Xxxx & Xxxxx LLP, counsel for the Company, to the
effect that:
(i) the Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware; the
Subsidiary has been duly organized and is validly existing as a national
banking association under the laws of the United States and continues to
hold a valid certificate to do business as such and has corporate power and
authority to conduct its business as such and as described in the
Registration Statement. The Company is qualified to transact business as a
foreign corporation and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except to the extent
such failure to be so qualified would not have a material adverse effect on
the assets, property, business, results of operations or financial
condition of the Company and its Subsidiary taken as a whole. The
Subsidiary is qualified to transact business as a foreign corporation under
the laws of the State of Connecticut and The Commonwealth of Massachusetts,
except where such failure to be so qualified would not have a material
adverse effect on the assets or properties, business, results of operation
or financial condition of the Company and its Subsidiary taken as a whole.
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(ii) each of the Company and the Subsidiary have corporate authority
to own or lease their respective properties and conduct their respective
businesses as described in the Registration Statement and the Prospectus,
and the Company has corporate authority to enter into this Agreement and to
carry out all the terms and provisions hereof to be carried out by it;
(iii) the issued shares of capital stock of the Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable and
except for directors' qualifying shares and except as otherwise set forth
in the Prospectus, are to such counsel's knowledge owned of record by the
Company free and clear of any security interests or, to the best knowledge
of such counsel, liens, encumbrances, equities or claims;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable and were, to the knowledge of such
counsel, not issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities; the Firm Securities
have been duly authorized by all necessary corporate action of the Company
and, when issued and delivered to and paid for by the Underwriters pursuant
to this Agreement, will be validly issued, fully paid and
-16-
nonassessable; the Securities have been duly approved for quotation on the
Nasdaq National Market; to the knowledge of such counsel, no holders of
outstanding shares of capital stock of the Company are entitled as such to
any preemptive or other rights to subscribe for any of the Securities; to
the knowledge of such counsel, no holders of securities of the Company are
entitled to have such securities registered under the Registration
Statement which rights have not been waived; and the form of certificates
evidencing the Securities complies in all material respects as to form with
requirements of the Delaware General Corporation Law, the charter and by-
laws of the Company and the Nasdaq;
(v) the statements set forth under the heading "Description of
Capital Stock" in the Prospectus, insofar as such statements purport to
summarize certain legal provisions of the capital stock of the Company,
provide a fair summary of such provisions; and the statements set forth
under the headings "Risk Factors--Regulation and Supervision," "Business--
Legal Proceedings" and "Regulation and Supervision" in the Prospectus,
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, provide a fair summary of
such legal matters, documents and proceedings;
(vi) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company; except (a)
as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, marshalling or other laws and rules
of law affecting the enforcement generally of creditors' rights and
remedies (including such as may deny giving effect to waivers of debtors'
or guarantors' rights); (b) no opinion is given herein as to the
availability of any specific or equitable relief of any kind or the
availability of any contractually specified remedy; (c) applicable federal
and state securities laws and public policy may limit the application of
provisions relating to indemnification and contribution with respect to
securities law matters; and (d) the enforcement of any of your rights may
in all cases be subject to an implied duty of good faith and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(vii) to the knowledge of such counsel, no legal or governmental
proceedings are pending to which the Company or the Subsidiary is a party
or to which the property of the Company or the Subsidiary is subject that
are required to be described in the Registration Statement or the
Prospectus and are not described therein, and, to the best knowledge of
such counsel, no such proceedings have been threatened against the Company
or the Subsidiary or with respect to any of their respective properties.
(viii) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained
and such as may be required under the Securities Act, the Exchange Act,
state securities or blue sky laws, or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or
-17-
other agreement or instrument, known to such counsel, to which the Company
or the Subsidiary is a party or by which the Company or the Subsidiary or
any of their respective properties are bound, or the charter documents or
by-laws of the Company or the Subsidiary, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator known to such counsel and applicable to the
Company or the Subsidiary; except in each case for such conflicts,
breaches, violations and defaults which, considering all such cases in
the aggregate, would not have material adverse effect on the assets or
properties, business prospects, results of operations or financial
condition of the Company and the Subsidiary, taken as a whole, or affect
the validity of the Shares.
(ix) the Registration Statement originally filed with respect to the
Securities and each amendment thereto, any Rule 462(b) Registration
Statement and the Prospectus (in each case, other than the Section entitled
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," the financial statements, schedules and other financial and
statistical information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
applicable requirements of the Act and the rules and regulations of the
Commission thereunder;
(x) the Company is not and after giving effect to the offering and
sale of Securities, will not be an "investment company" within the meaning
of the Investment Company Act of 1940, as amended. Such counsel shall be
entitled to rely in respect of the opinions set forth above upon
certificates of public officials, opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company or the
Subsidiary.
Xxxxxxx, Xxxx & Xxxxx LLP shall also state that they have participated
in certain conferences with officers and other representatives of the
Company and the Subsidiary, representatives of the Underwriters, and
representatives of the independent certified public accountants of the
Company, at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed, and although such
counsel are not passing upon and do not assume any responsibility for the
accuracy, completeness, or fairness of the statements contained in the
Registration Statement and Prospectus, on the basis of the foregoing, no
facts have come to such counsel's attention that have caused them to
believe that (A) the Registration Statement (other than the section
entitled "Management's Discussion and Analysis of Financial Condition and
Results of Operations," financial statements, including
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the notes thereto, and related schedules and other financial and
statistical data included therein, as to which they may express no view),
at the time such Registration Statement became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (B) as of its date, the Prospectus (other than the section
entitled "Management's Discussion and Analysis of Financial Condition and
Results of Operations," financial statements, including the notes thereto,
and related schedules and other financial and statistical data included
therein, as to which they may express no view) contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances in which they were made, not misleading, or
(C) as of the Firm Closing Date, either the Registration Statement or the
Prospectus (other than section entitled "Management's Discussion and
Analysis of Financial Condition and Results of Operations," financial
statements, including the notes thereto, and related schedules and other
financial and statistical data included therein, as to which they may
express no view) contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances in
which they were made, not misleading; and they do not know of any contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus that are not filed or described as required.
The Registration Statement has become effective under the Act. To the best
of such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued by the Commission nor has any
proceeding been instituted or contemplated for that purpose under the Act.
The Prospectus has been filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations under the Act within the time period required
thereby. The Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that constitutes a
part thereof, pursuant to Rules 434 and 424(b) has been made in the manner
and within the time period required by Rules 434 and 424(b); and no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings for that purpose have
been instituted or threatened or, to the best knowledge of such counsel,
are contemplated by the Commission. Here If the Company elects to rely on
Rule 434, the Prospectus is not "materially different," as such term is
used in Rule 434, from the Prospectus included in the Registration
Statement at the time of its effectiveness or an effective post-effective
amendment thereto (including such information that is permitted to be
omitted pursuant to Rule 430A).
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date
of such opinion.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Stroock & Stroock & Xxxxx LLP, counsel for the Underwriters,
with respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
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(d) The Representatives shall have received from Coopers & Xxxxxxx L.L.P.
a letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company and
the Subsidiary within the meaning of the Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the audited consolidated financial statements
and schedules examined by them and included in the Registration Statement
and the Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations;
(iii) at a specific date not more than five business days prior to
the date of such letter, there were not any changes in the capital stock or
total liabilities of the Company and the Subsidiary or any decreases
in total assets or stockholders' equity of the Company and the Subsidiary,
in each case compared with amounts shown on the December 31, 1996
consolidated balance sheet included in the Registration Statement and the
Prospectus, or for the period from January 1, 1997 to such specified date
there were not any decreases, as compared with the comparable period of the
preceding year in total revenues, net income before income taxes or total
or per share amounts of net income of the Company and the Subsidiary,
except in all instances for changes, decreases or increases set forth in
such letter; and
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records
of the Company and the Subsidiary and are included in the Registration
Statement and the Prospectus under the captions "Summary" and "Selected
Consolidated Financial Data" and in Exhibit 11-1 to the Registration
Statement, and have compared such amounts, percentages and financial
information with such records of the Company and the Subsidiary and with
information derived from such records and have found them to be in
agreement, excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied
by a written explanation of the Company as to the significance thereof,
unless the Representatives deem such explanation unnecessary, and (B) such
changes, decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed with the
purchase and delivery of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include
any amendment or supplement thereto at the date of such letter.
(e) The Representatives shall have received a certificate, dated the
Firm Closing Date, from Xxxxx X. Xxxxxxx, Chairman of the Board of Directors and
President of the Company, and Xxxxxx
-20-
X. Xxxxxxxxx, Executive Vice President and Chief Financial Officer of the
Company, acting solely in their capacities as executive officers of the Company
to the effect that:
(i) to the best of their knowledge after due inquiry, the
representations and warranties of the Company in this Agreement are true
and correct as if made on and as of the Firm Closing Date; the Registration
Statement, as amended as of the Firm Closing Date, does not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Firm Closing Date, does
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
the Company has performed all covenants and agreements contained in this
Agreement and satisfied all conditions contained in this Agreement on its
part to be performed or satisfied at or prior to the Firm Closing Date; and
(ii) no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto has been issued, and no proceedings for
that purpose have been instituted or threatened or, to the best of the
Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the Company
nor the Subsidiary has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from
any labor dispute or any legal or governmental proceeding, and there has
not been any material adverse change, or any development involving a
prospective material adverse change in the assets or properties, business
prospects, results of operations or financial condition of the Company or
the Subsidiary, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received from each person set forth on
Schedule B attached hereto, an agreement to the effect that, except as set forth
herein, such person will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of an option to purchase or other sale or
disposition) of any shares of Common Stock or any securities convertible into,
or exchangeable or exercisable for, shares of Common Stock for a period of 180
days after the date of this Agreement.
(g) On or before the Firm Closing Date, the Representatives and counsel
for the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(h) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the Nasdaq National Market.
-21-
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
8. INDEMNIFICATION AND CONTRIBUTION.
---------------------------------
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Securities Exchange Act of 1934 (the
"Exchange Act"), against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or such controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any material
fact contained in (A) the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or (B) any application or other document, or any amendment or
supplement thereto, executed by the Company or based upon written
information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the securities or
blue sky laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the
statements therein not misleading or
(iv) any untrue statement or alleged untrue statement of any material
fact contained in any audio or visual materials used in connection with the
marketing of the Securities, including without limitation, slides, videos,
films, tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with
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 untrue
statement or alleged untrue statement or
-22-
omission or alleged omission made in such registration statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein; and
provided, further, that the Company will not be liable to any Underwriter
-------- -------
or any person controlling such Underwriter with respect to any such untrue
statement or omission made in any Preliminary Prospectus that is
corrected in the Prospectus (or any amendment or supplement thereto) if the
person asserting any such loss, claim, damage or liability purchased
Securities from such Underwriter but was not sent or given a copy of the
Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person in any case
where such delivery of the Prospectus (as amended or supplemented) is
required by the Act, unless such failure to deliver the Prospectus (as
amended or supplemented) was a result of noncompliance by the Company with
Section 5(d) and (e) of this Agreement. This indemnity agreement will be in
addition to any liability which the Company may otherwise have. The Company
will not, without the prior written consent of the Underwriter or
Underwriters purchasing, in the aggregate, more than fifty percent (50%) of
the Securities, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not
any such Underwriter or any person who controls any such Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of
such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or any Application or (ii) the omission
or the alleged omission to state therein a material fact required to be stated
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein: and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
-23-
(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 of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
-------- ---------
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 8 is due in accordance with its terms but
for any reason is held to be unavailable or insufficient, for any reason, to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities
-24-
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11 of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Company.
9. DEFAULT OF UNDERWRITERS. If one or more Underwriters default in their
-----------------------
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default
-25-
occurs, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Company other than as provided in Section 10
hereof. In the event of any default by one or more Underwriters as described in
this Section 9, the Representatives shall have the right to postpone the Firm
Closing Date or the Option Closing Date, as the case may be, established as
provided in Section 3 hereof for not more than seven business days in order that
any necessary changes may be made in the arrangements or documents for the
purchase and delivery of the Firm Securities or Option Securities, as the case
may be. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9. Nothing herein shall
relieve any defaulting Underwriter from liability for its default.
10. SURVIVAL. The respective representations, warranties, agreements,
--------
covenants, indemnities and other statements of the Company, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
11. TERMINATION.
-----------
(a) This Agreement may be terminated with respect to the Firm Securities
or any Option Securities in the sole discretion of the Representatives by notice
to the Company given prior to the Firm Closing Date or the related Option
Closing Date, respectively, in the event that the Company shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at or prior thereto or, if at or
prior to the Firm Closing Date or such Option Closing Date, respectively,
(i) the Company and the Subsidiary shall have, in the sole judgment
of the Representatives, sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from
any labor dispute or any legal or governmental proceeding or there shall
have been any material adverse change, or any development involving a
prospective material adverse change (including without limitation a change
in management or control of the Company), in the assets or properties,
business prospects, results of operations or financial condition of the
Company and the Subsidiary, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or supplement
thereto);
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities generally
on the Nasdaq National Market shall have been suspended or minimum or
maximum prices shall have been established on either such exchange or for
such market system;
(iii) a banking moratorium shall have been declared by either Federal
or state authorities; or
-26-
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or material
adverse change in general economic, political or financial conditions
having an effect on the U.S. financial markets that, in the sole judgment
of the Representatives, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by
the Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Section
10 hereof.
12. INFORMATION SUPPLIED BY UNDERWRITERS. The statements set forth in
-------------------------------------
the last paragraph on the front cover page and under the heading "Underwriting"
in any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 8 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
13. NOTICES. All communications hereunder shall be in writing and, if
-------
sent to any of the Underwriters, shall be delivered or sent by mail, courier or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; and if sent to the Company, shall be delivered or sent by
mail, courier or facsimile transmission and confirmed in writing to the Company
at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxxxx.
14. SUCCESSORS. This Agreement shall inure to the benefit of and shall be
----------
binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. TIME OF THE ESSENCE. Time shall be of the essence in this Agreement.
-------------------
16. BUSINESS DAY. As used herein, the term "business day" shall mean any
------------
day when the Commission's Office in Washington, D.C. is open for business.
-27-
17. CAPTIONS. The captions in this Agreement are included solely for
--------
convenience of reference and shall not be deemed to be a part of this Agreement.
18. APPLICABLE LAW. The validity and interpretation of this Agreement,
--------------
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
19. COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-28-
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
FIRST INTERNATIONAL BANCORP, INC.
By:___________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXX, XXXXXXXX & XXXXX, INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By: __________________________________________
Name: Xxxx-Xxxxxx Canfin
Title: Managing Director
For itself and on behalf of the Representatives.
-29-
SCHEDULE A
UNDERWRITERS
Number of Firm Securities
Underwriter to be Purchased
----------- -------------------------
Prudential Securities Incorporated....................
Xxxxx, Xxxxxxxx & Xxxxx, Inc. ........................
Total................................................. _________________________
-30-
Schedule B
-31-
