EXECUTION COPY
$50,000,000
HUBCO Capital Trust I
8.98% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
guaranteed by
HUBCO, Inc.
PURCHASE AGREEMENT
January 28, 1997
XXXXX, XXXXXXXX & XXXXX, INC.
XXXXXXXXXX XXXX & XXXX INCORPORATED
XXXX, XXXX & CO.
XXXXXX XXXXXXX INCORPORATED
as the Initial Purchasers
c/o Keefe, Xxxxxxxx & Xxxxx, Inc.
Two World Trade Center
New York, New York 10048
Ladies and Gentlemen:
HUBCO Capital Trust I (the "Trust"), a statutory business trust
created under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801 et
seq.)) and HUBCO, Inc. (the "Company," and together with the Trust, the
"Offerors") confirm their agreement (the "Agreement") with Xxxxx, Xxxxxxxx &
Xxxxx, Inc. ("KBW"), Xxxxxxxxxx Xxxx & Xxxx Incorporated, Xxxx, Xxxx & Co. and
Xxxxxx Xxxxxxx Incorporated (collectively, the "Initial Purchasers"), which
terms shall also include any initial purchaser substituted as hereinafter
provided in Section 10 hereof, with respect to the issue and sale by the Trust
and the purchase by the Initial Purchasers, acting severally and not jointly of
the respective number set forth in Schedule A of 8.98% Capital Securities
(liquidation amount of $1,000 per security) of the Trust (the "Capital
Securities"). The Capital Securities will be guaranteed by the Company, to the
extent described in the Offering Memorandum (as defined below), with respect to
distributions and payments upon liquidation, redemption and otherwise pursuant
to the Capital Securities Guarantee Agreement (the "Capital Securities
Guarantee"), to be dated as of January 31, 1997, between the Company and the
Bank of New York, as Trustee (the "Guarantee Trustee"). The Capital Securities
issued in book-entry form will be issued to Cede & Co. as nominee of The
Depository Trust Company ("DTC") pursuant to an additional or supplemented
letter agreement, to be dated on or prior to the Closing Time (as defined in
Section 2(b)) (the "DTC Agreement"), among the Trust, the Guarantee Trustee and
DTC.
The Company is a registered bank holding company under the provisions
of the Bank Holding Company Act of 1956, as amended, whose principal operating
subsidiaries are Xxxxxx United Bank ("HUB"), a New Jersey-chartered commercial
bank and Lafayette American Bank and Trust Company, a Connecticut-chartered bank
("Lafayette," and together with HUB, the "Banks" and each a "Bank"). The entire
proceeds from the sale of the Capital Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), as guaranteed by the Company, to the
extent set forth in the Offering Memorandum, with respect to distributions and
payments upon liquidation, redemption and otherwise pursuant to the Common
Securities Guarantee Agreement (the "Common Securities Guarantee" and, together
with the Capital Securities Guarantee, the "Guarantees"), to be dated as of
January 31, 1997, made by the Company, and will be used by the Trust to purchase
$51,547,000 in aggregate principal amount of the 8.98% Junior Subordinated
Deferrable Interest Debentures due February 1, 2027 (the "Subordinated
Debentures") issued by the Company. The Capital Securities and the Common
Securities will be issued pursuant to the Amended and Restated Declaration of
Trust, to be dated as of January 31, 1997 (the "Declaration"), among the
Company, as sponsor, Xxxxxxx X. Xxxxxxx and X. Xxxx Van Borkulo-Xxxxx, as
administrative trustees (the "Administrative Trustees"), The Bank of New York,
as property trustee (the "Property Trustee"), and The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee," and, together with the
Property Trustee and the Administrative Trustees, the "Trustees"). The
Subordinated Debentures will be issued pursuant to an indenture, to be dated as
of January 31, 1997 (the "Indenture"), between the Company and The Bank of New
York, as trustee (the "Debenture Trustee").
The Capital Securities, the Capital Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the "Initial
Securities."
The Initial Securities will be subject to the registration rights set
forth in the registration rights agreement (the "Registration Rights
Agreement"), to be executed on and dated as of the Closing Time. Pursuant to the
Registration Rights Agreement, the Offerors will agree, among other things, to
file with the Securities and Exchange Commission (the "Commission") (i) a
registration statement (the "Exchange Offer Registration Statement") under the
United States Securities Act of 1933, as amended (the"1933 Act"), relating to
another series of capital securities (liquidation amount $1,000 per security) of
the Trust (the "Exchange Capital Securities"), another capital securities
guarantee (the "Exchange Capital Securities Guarantee"), and another series of
Junior Subordinated Deferrable Interest Debentures due February 1, 2027 (the
"Exchange Subordinated Debentures" and, collectively with the Exchange Capital
Securities and the Exchange Capital Securities Guarantee, the "Exchange
Securities"), to be offered in exchange for the Initial Securities (such offer
to exchange being referred to as the "Exchange Offer") and/or (ii) a shelf
registration statement (the "Shelf Registration Statement") pursuant to Rule 415
of the rules and regulations under the 1933 Act (the "1933 Act Regulations")
relating to the resale by certain holders of the Capital Securities. The
Registration Rights Agreement shall be in a form, and shall contain terms and
provisions, customary for similar Rule 144A transactions, and shall otherwise be
in form and substance reasonably satisfactory to KBW.
The Initial Securities and the Exchange Securities are jointly
referred to as the "Securities". The Indenture, the Declaration, the Guarantees,
the Registration Rights Agreement, the DTC Agreement and this Agreement are
hereinafter referred to collectively as the "Operative Documents."
The Offerors understand that the Initial Purchasers propose to make an
offering of the Capital Securities (as guaranteed by the Capital Securities
Guarantee) on the terms and in the manner set forth herein and agree that the
Initial Purchasers may resell, subject to the conditions set forth herein, all
or a portion of the Capital Securities to purchasers ("Subsequent Purchasers")
at any time after the date of this Agreement. The Capital Securities are to be
offered and sold through the Initial Purchasers without being registered under
the 1933 Act, in reliance upon exemptions therefrom. Pursuant to the terms of
the Capital Securities, investors that acquire Capital Securities may only
resell or otherwise transfer such Capital Securities if such Capital Securities
are hereafter registered under the 1933 Act or if an exemption from the
registration requirements of the 1933 Act is available (including the exemption
afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation S") of the 1933
Act Regulations).
The Offerors have prepared and delivered to the Initial Purchasers
copies of a preliminary offering memorandum dated January 27, 1997 (the
"Preliminary Offering Memorandum") and have prepared and will deliver to the
Initial Purchasers, as soon as practicable, copies of a final offering
memorandum, dated January 28, 1997 (the "Final Offering Memorandum"), each for
use by the Initial Purchasers in connection with their respective solicitation
of purchases of, or offering of, the Capital Securities. "Offering Memorandum"
means, with respect to any date or time referred to in this Agreement, the most
recent offering memorandum (whether the Preliminary Offering Memorandum or the
Final Offering Memorandum, or any amendment or supplement to either such
document), including exhibits thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the Offerors to the Initial
Purchasers in connection with their solicitation of purchases of, or offering
of, the Capital Securities.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," "disclosed" or "stated"
in the Offering Memorandum (or other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act") which is
incorporated by reference in the Offering Memorandum.
Representations and Warranties.
The Offerors jointly and severally represent and warrant to each of
the Initial Purchasers as of the date hereof and as of the Closing Time, and
agree with each of the Initial Purchasers as follows:
The Offerors have not, directly or indirectly, solicited any offer to
buy or offered to sell, and will not, directly or indirectly, solicit any offer
to buy or offer to sell, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale of the
Capital Securities in a manner that would require the Capital Securities to be
registered under the 1933 Act.
The Offering Memorandum does not, and at the Closing Time will not,
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in or
omissions from the Offering Memorandum made in reliance upon and in conformity
with information furnished to the Offerors in writing by or on behalf of any
Initial Purchaser expressly for use in the Offering Memorandum.
The documents incorporated or deemed to be incorporated by reference
in the Offering Memorandum at the time they were or hereafter are filed with the
Commission complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read together with the other
information in the Offering Memorandum, at the date of the Offering Memorandum
and at the Closing Time, do not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The financial statements of the Company incorporated by reference in
the Offering Memorandum present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results of
operations and changes in financial position of such entities for the periods
specified; except as otherwise stated in the Offering Memorandum, such financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis; and the supporting schedules
for the Company and its consolidated subsidiaries incorporated by reference in
the Offering Memorandum present fairly the information required to be stated
therein. The summary financial data included in the Offering Memorandum present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Offering Memorandum.
The accountants who certified the financial statements and supporting
schedules of the Company and its consolidated subsidiaries incorporated by
reference in the Offering Memorandum are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
Since the respective dates as of which information is given in the
Offering Memorandum, except as may otherwise be stated in, or referred to
therein: (1) there has not been any material adverse change in the condition,
financial or otherwise, of the Trust or of the Company and its consolidated
subsidiaries considered as one enterprise, or in the earnings, assets, business
affairs or business prospects of the Trust or of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (2) there have not been any transactions entered
into by the Trust or by the Company or any of its subsidiaries other than in the
ordinary course of business which are material to the Trust or the Company and
its consolidated subsidiaries considered as one enterprise, and (3) except for
regular quarterly dividends on the Company's outstanding shares of common stock,
there has been no dividend or distribution of any kind declared, paid or made by
the Company on its capital stock or by the Trust on any class of its securities.
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New Jersey and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum and to enter into
and perform its obligations under this Agreement; the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiary
considered as one enterprise; and the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended.
Each of HUB and Lafayette has been duly incorporated and is validly
existing as a bank in good standing under the laws of New Jersey and
Connecticut, respectively, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Offering
Memorandum and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each of the Banks has been duly authorized and
validly issued, is fully paid and non-assessable and is directly owned by the
Company, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital stock of
any of the Banks was issued in violation of the preemptive or similar rights of
any stockholder of such corporation arising by operation of law, under the
charter or by-laws of any subsidiary or under any agreement to which the Company
or any such Bank is a party.
The Company and its subsidiaries have good and marketable title to all
properties (real and personal) owned by the Company and its subsidiaries, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Offering Memorandum or (b) do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and proposed
to be made of such property by the Company or its subsidiaries; and all
properties held under lease by the Company or its subsidiaries are held under
valid, subsisting and enforceable leases, except where the failure to hold such
leases would not, singly or in the aggregate, have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
The authorized, issued and outstanding capital stock of the Company
set forth in the Offering Memorandum under the heading "Capitalization" is
accurate as of the date indicated in such document; and the shares of such
issued and outstanding capital stock have been duly authorized and validly
issued and are fully paid and non-assessable and such capital stock conforms in
all material respects to all statements relating thereto contained in the
Offering Memorandum.
The Trust has been duly created and is validly existing in good
standing as a statutory business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under the
Operative Documents, as applicable, and the Capital Securities; the Trust is not
a party to or otherwise bound by any material agreement other than those
described in the Offering Memorandum; the Trust is and will, under current law,
be classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation; the Trust does not have any
consolidated or unconsolidated subsidiaries; the Trust is and will be treated as
a consolidated subsidiary of the Company pursuant to GAAP; and the Trust is not
required to be authorized to do business in any jurisdiction other than the
State of Delaware, except where the failure to be so authorized would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
The Common Securities have been duly authorized by the Declaration
and, when issued and delivered by the Trust to the Company against payment
therefor as described in the Offering Memorandum, will be validly issued and
will represent undivided beneficial interests in the assets of the Trust; the
issuance of the Common Securities is not subject to preemptive or other similar
rights; and at the Closing Time all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
As of the Closing Time, the Capital Securities will have been duly
authorized by the Trust and, when issued and delivered against payment therefor
as provided herein, will be validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will conform to
the description thereof contained in the Offering Memorandum and the issuance of
the Capital Securities will not be subject to preemptive or other similar
rights; and as of the Closing Time, the Exchange Capital Securities will have
been duly authorized by the Trust, and when issued in accordance with the
Declaration, will be validly issued and fully paid and non-assessable undivided
beneficial interests in the Trust. The holders of the Capital Securities and the
Exchange Capital Securities, respectively, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability as that extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
The execution and delivery by the Trust and the Company of this
Agreement and the performance by the Trust and the Company of their respective
obligations hereunder, have been duly authorized by all necessary business trust
action on the part of the Trust and corporate action on the part of the Company;
and this Agreement has been duly executed and delivered by the Trust and the
Company.
The Declaration has been duly authorized by the Company and, at the
Closing Time, will have been duly executed and delivered by the Company and the
Trustees, and assuming due authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware Trustee, the Declaration
will, at the Closing Time, be a valid and binding obligation of the Company and
the Trustees, enforceable against the Company and the Trustees in accordance
with its terms, except to the extent that enforcement thereof may be limited by
the receivership, conservatorship and supervisory powers of bank regulatory
agencies generally as well as to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally or by
general principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity) and the availability of equitable remedies
(collectively, the "Enforceability Exceptions"); and at the time the Exchange
Offer is consummated, the Declaration will have been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
Each of the Guarantees and the Exchange Capital Securities Guarantee
has been duly authorized by the Company and, at the Closing Time, each of the
Guarantees will have been duly executed and delivered by the Company, and will
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions; at or prior to the time
the Exchange Offer is consummated, the Exchange Capital Securities Guarantee
will have been duly executed and delivered by the Company, and will constitute a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions; and at the time the Exchange Offer is
consummated, the Exchange Capital Securities Guarantee will have been duly
qualified under the 1939 Act.
The Indenture has been duly authorized by the Company and, at the
Closing Time, will have been duly executed and delivered by the Company and will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions; and at the time the
Exchange Offer is consummated, the Indenture will have been duly qualified under
the 1939 Act and will conform to the description thereof contained in the
Offering Memorandum.
The Subordinated Debentures have been duly authorized by the Company
and, at the Closing Time, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered against
payment therefor as described in the Offering Memorandum, will constitute valid
and binding obligations of the Company, and the Exchange Subordinated Debentures
have been duly authorized by the Company and, when duly executed by the Company
and authenticated in the manner provided in the Indenture, will constitute valid
and binding obligations of the Company, in each case, enforceable against the
Company in accordance with their terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions; and the Subordinated
Debentures will be in the form contemplated by, and entitled to the benefits of,
the Indenture and will conform to the description thereof in the Offering
Memorandum.
The Registration Rights Agreement has been duly authorized by the
Offerors and, at the Closing Time, will have been duly executed and delivered
and will constitute a valid and binding agreement of the Offerors, enforceable
against the Offerors in accordance with its terms, except to the extent
enforcement thereof may be limited by the Enforceability Exceptions; and the
Registration Rights Agreement will conform to the description thereof contained
in the Offering Memorandum.
The Operative Documents, the Capital Securities, the Common Securities
and the Guarantees each conform in all material respects to the descriptions
thereof contained in the Offering Memorandum.
Each of the Administrative Trustees is an officer or employee of the
Company and has been duly authorized by the Company to execute and deliver the
Declaration.
At the Closing Time, the Property Trustee will be the record holder of
the Subordinated Debentures and no security interest, mortgage, pledge, lien,
encumbrance, claim or equity will be noted thereon or on the Subordinated
Debenture register maintained by or on behalf of the Company.
Neither the Trust nor the Company is, and following consummation of
the transactions contemplated hereby will not be, an "investment company" or a
company "controlled" by an "investment company" which is required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
The Trust is not in violation of the Trust Certificate (defined below)
or the Declaration, and neither the Company nor any of the Banks is in violation
of its charter or by-laws and none of the Trust, the Company or any of the Banks
is in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, loan agreement, or
any contract, note, lease or other instrument to which it is a party or by which
it or its properties may be bound, which violation or default, singly or in the
aggregate, would have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of the
Trust or the Company and its subsidiary considered as one enterprise; the
execution and delivery of this Agreement and the Operative Documents by the
Trust or the Company, as the case may be, and the consummation by the Offerors
of the transactions herein and therein contemplated and the compliance with the
terms of this Agreement and the issuance and delivery of the Securities have
been duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust, the Company or
any of the Banks under, any contract, indenture, mortgage, deed of trust or
other material agreement or instrument to which the Trust, the Company or any
Bank is a party or by which it or any of their respective properties are bound,
except for such conflicts, breaches and defaults as, in the aggregate, would not
be material to the Trust, or to the Company and its subsidiary considered as one
enterprise, nor will such action result in any violation of the charter or
by-laws of the Company or any of the Banks or the Declaration or the trust
certificate of the Trust filed with the State of Delaware on [ ], 1997 (the
"Trust Certificate"), or any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the Trust, the Company or
any Bank or any of their respective properties.
No filing with, or approval, authorization or consent of, any court or
governmental authority or agency is required in connection with the offering,
issuance or sale of the Capital Securities under this Agreement or the
consummation of the transactions contemplated by the Operative Documents, except
such as have been obtained or will have been obtained prior to the Closing Time
or as may be required under state securities laws.
There is no action, suit, proceeding, inquiry or investigation before
or by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or its subsidiaries which is not disclosed in the Offering
Memorandum which might reasonably be expected to result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiary considered as
one enterprise, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of this
Agreement or the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the Offering
Memorandum, including ordinary routine litigation incidental to the business
could not reasonably be expected to result in a material adverse change in the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiary considered as one enterprise.
The Company and its subsidiaries have filed all federal, state, local
and foreign tax returns that are required to be filed or have duly requested
extensions thereof and have paid all taxes required to be paid by any of them
and any related assessments, fines or penalties, except for any such tax,
assessment, fine or penalty that is being contested in good faith and by
appropriate proceedings, and adequate charges, accruals and reserves have been
provided for in the financial statements referred to in Section 1(a)(iv) above
in respect of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company or its subsidiaries has not been finally
determined or remains open to examination by applicable taxing authorities.
The Company and its subsidiaries carry or are entitled to the benefits
of insurance in such amounts and covering such risks as is generally maintained
by companies of established repute engaged in the same or similar business, and
all such insurance is in full force and effect.
The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general and specific
authorizations; (ii) transactions are recorded as necessary to permit
preparations of financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorizations; 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.
The Company and its subsidiaries possess such certificates,
authorities, permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiary considered as one enterprise; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a material adverse effect on the condition,
financial or otherwise, earnings, business affairs or business prospects of the
Company and its subsidiary considered as one enterprise; and neither the Company
nor any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiary considered as one enterprise.
The Company and its subsidiaries own or possess or can acquire on
reasonable terms, the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, "patent and proprietary rights")
presently employed by them in connection with the business now operated by them
as described in the Offering Memorandum, except where lack thereof would not
result in a material adverse change in the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiary considered as one enterprise, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any patent or
proprietary rights or of any facts or circumstances which would render any
patent and proprietary rights invalid or inadequate to protect the interest of
the Company and its subsidiaries therein, and which infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiary considered as
one enterprise.
No labor dispute with the employees of the Company or its subsidiaries
exists or, to the knowledge of the Company, is imminent.
The Trust, the Company and its subsidiaries are in compliance with,
and conduct their respective businesses in conformity with, all applicable laws
and governmental regulations, the violation of which would have a material
adverse effect on the condition, financial or otherwise, or on the earnings,
business affairs, or business prospects of the Trust, or the Company and its
subsidiaries considered as one enterprise.
Other than such agreements, contracts and other documents as are
described in the Offering Memorandum or otherwise filed as Exhibits to the
Company's annual report on Form 10-K or quarterly reports on Form 10-Q or
current reports on Form 8-K incorporated by reference in the Offering
Memorandum, there are no agreements, contracts or documents of a character
described in Item 601 of Regulation S-K under the 1933 Act to which the Company
or any of the Principal Subsidiaries is a party.
The Company has not taken and will not take, directly or indirectly,
any action designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of the
Securities.
The Capital Securities are eligible for resale pursuant to Rule 144A
and will not be, at the Closing Time, of the same class as securities listed on
a national securities exchange registered under Section 6 of the 1934 Act, or
quoted in a U.S. automated interdealer quotation system.
None of the Trust, the Company, or any of their affiliates, as such
term is defined in Rule 501(b) under the 1933 Act ("Affiliates"), or any person
acting on its or any of their behalf (other than the Initial Purchasers, as to
whom the Offerors make no representation) has engaged or will engage, in
connection with the offering of the Capital Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
1933 Act.
Subject to compliance by the Initial Purchasers with the procedures
set forth in Section 6 hereof, prior to the Exchange Offer, it is not necessary
in connection with the offer, sale and delivery of the Capital Securities to the
Initial Purchasers and to each Subsequent Purchaser in the manner contemplated
by this Agreement and the Offering Memorandum to register the Capital Securities
under the 1933 Act or to qualify any indenture or any guarantee under the 1939
Act.
With respect to those Capital Securities, if any, sold in reliance on
Regulation S, (A) none of the Trust, the Company, its Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers, as to whom the
Offerors make no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (B) each of the Trust,
the Company and its Affiliates and any person acting on its or their behalf
(other than the Initial Purchasers, as to whom the Offerors make no
representation) has complied and will comply with the offering restrictions
requirement of Regulation S.
Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any of the Banks and delivered to you or to
counsel for the Initial Purchasers shall be deemed a representation and warranty
by the Trust or the Company, as the case may be, to the Initial Purchasers as to
the matters covered thereby.
Sale and Delivery to Initial Purchasers; Closing.
On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Initial Purchaser, severally and not jointly, and each Initial
Purchaser agrees to purchase from the Trust, at a price of $1,000 per Capital
Security, the number of Capital Securities set forth in Schedule A opposite the
name of such Initial Purchaser, plus any additional Capital Securities which
such Initial Purchaser may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
Deliveries of certificates for the Capital Securities shall be made at
the office of KBW in New York (or at the offices of Brown & Wood LLP specified
below in the case of Capital Securities registered in the name of Cede & Co.),
and payment of the purchase price for the Capital Securities shall be made by
the Initial Purchasers to the Trust by wire transfer of immediately available
funds contemporaneous with closing at the offices of Brown & Wood LLP, One World
Trade Center, New York, New York 10048, at 10:00 A.M. on January 31, 1997, or
such other time not later than ten business days after such date as shall be
agreed upon by KBW and the Offerors (such time and date of payment and delivery
being herein called the "Closing Time").
Payment for the Capital Securities purchased by the Initial Purchasers
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the account of the Initial Purchasers of certificates for
the Capital Securities. Certificates for the Capital Securities shall be in such
denominations and registered in such names as the Initial Purchasers may request
in writing at least one business day before the Closing Time. It is understood
that each of the Initial Purchasers has authorized KBW for its account to accept
delivery of, receipt for, and make payment of the purchase price for the Capital
Securities which it has agreed to purchase. KBW, individually and not as
representative of the Initial Purchasers, may (but shall not be obligated to)
make payment of the Purchase price for the Capital Securities to be purchased by
any Initial Purchaser whose funds have not been received by the Closing Time,
but such payment shall not relieve such Initial Purchaser from its obligations
hereunder. The certificates representing the Capital Securities which are not
resold to institutional "accredited investors" shall be registered in the name
of Cede & Co. pursuant to the DTC Agreement and shall be made available for
examination and packaging by the Initial Purchasers in The City of New York not
later than 10:00 A.M. on the last business day prior to the Closing Time.
As compensation to the Initial Purchasers for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Capital
Securities will be used to purchase Subordinated Debentures of the Company, the
Company hereby agrees to pay at the Closing Time to KBW in immediately available
funds, for the several accounts of the Initial Purchasers, $15.00 per Capital
Security to be delivered by the Company hereunder at the Closing Time.
Each Initial Purchaser, severally and not jointly, represents and
warrants to, and agrees with, the Company that it is a Qualified Institutional
Buyer (as defined in Section 6(a)(i)) and an Institutional Accredited Investor
(as defined in Section 6(a)(i)).
Covenants of the Offerors. The Offerors covenant with each of the
Initial Purchasers as follows:
The Offerors, as promptly as possible, will furnish to each Initial
Purchasers, without charge, such number of copies of the Offering Memorandum and
any amendments and supplements thereto and documents incorporated by reference
therein as such Initial Purchasers may reasonably request.
The Offerors will immediately notify each Initial Purchaser, and
confirm such notice in writing, of (x) any filing made by the Offerors of
information relating to the offering of the Capital Securities with any
securities exchange or any other regulatory body in the United States or any
other jurisdiction, and (y) prior to the completion of the placement of the
Capital Securities by the Initial Purchasers as evidenced by a notice in writing
from the Initial Purchasers to the Offerors, any material changes in or
affecting the earnings, business affairs or business prospects of the Trust, or
the Company and its subsidiary considered as one enterprise, which (i) make any
statement in the Offering Memorandum false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or if during such time any
event shall occur as a result of which it is necessary, in the reasonable
opinion of the Company, its counsel or counsel for the Initial Purchasers, to
amend or supplement the Offering Memorandum in order that the Offering
Memorandum not include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading
in the light of the circumstances then existing, the Company will forthwith
amend or supplement the Offering Memorandum by preparing and furnishing to the
Initial Purchasers an amendment or amendments of, or a supplement or supplements
to, the Offering Memorandum (in form and substance satisfactory in the
reasonable opinion of counsel for the Initial Purchasers) so that, as so amended
or supplemented, the Offering Memorandum will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered to a Subsequent Purchaser, not misleading.
The Offerors will advise each Initial Purchaser promptly of any
proposal to amend or supplement the Offering Memorandum and will not effect such
amendment or supplement without the consent of the Initial Purchasers, which
consent shall not be unreasonably withheld. Neither the consent of the Initial
Purchasers, nor the Initial Purchasers' delivery of any such amendment or
supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
The Offerors will cooperate with the Initial Purchasers and use their
reasonable best efforts to permit the Capital Securities to be eligible for
clearance and settlement through the facilities of DTC.
The Trust will use the proceeds received by it from the sale of the
Capital Securities in the manner specified in the Offering Memorandum under "Use
of Proceeds", and the Company will use the net proceeds received by it from the
sale of the Subordinated Debentures substantially in the manner specified or
contemplated in the Offering Memorandum under "Use of Proceeds".
Prior to the thirtieth day after the date of the Closing Time, neither
the Trust nor the Company will, without the prior written consent of KBW,
directly or indirectly, issue, sell, offer or agree to sell, grant any option
for the sale of, or otherwise dispose of, Capital Securities, any security
convertible into exchangeable or exercisable for Capital Securities or the
Subordinated Debentures or any debt securities substantially similar (including
provisions with respect to the deferral of interest) to the Subordinated
Debentures or any equity security substantially similar to the Capital
Securities (except for the Securities issued pursuant to this Agreement).
Payment of Expenses.
Expenses. The Company will pay all expenses incident to the
performance of its obligations and the obligations of the Trust under this
Agreement, including (i) the preparation, printing and any filing of the
Preliminary Offering Memorandum, the Final Offering Memorandum (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to the Initial Purchasers of this Agreement,
the Operative Documents and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Securities to the Initial Purchasers, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) rating agency fees and
(vi) the fees and expenses of any trustee appointed under any of the Operative
Documents, including the fees and disbursements of counsel for such trustees in
connection with the Operative Documents.
Termination of Agreement. If this Agreement is terminated by the
Initial Purchasers in accordance with the provisions of Section 5 or Section 9
hereof, the Company shall reimburse the Initial Purchasers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of Brown
& Wood LLP, counsel for the Initial Purchasers.
Conditions of the Initial Purchasers' Obligations. The obligations of
the several Initial Purchasers hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any Trustee of the Trust, officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the performance
by the Offerors of their obligations hereunder, and to the following further
conditions:
Opinion of Outside Counsel for Offerors. At the Closing Time, the
Initial Purchasers shall have received the favorable opinion, dated as of the
Closing Time, of Pitney, Xxxxxx, Xxxx & Xxxxx, counsel for the Company, to the
effect set forth in Exhibit A hereto.
Opinion of Special Delaware Counsel for Offerors. At the Closing Time,
the Initial Purchasers shall have received the favorable opinion, dated as of
the Closing Time, of Xxxxxx, Xxxxxxx, Arsht & Xxxxxxx, special Delaware counsel
to the Offerors to the effect set forth in Exhibit B hereto.
Opinions of Counsel for The Bank of New York. At the Closing Time, the
Initial Purchasers shall have received the favorable opinions, dated as of the
Closing Time, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New York,
as Property Trustee under the Declaration, and Guarantee Trustee under the
Capital Securities Guarantee Agreement, to the effect set forth as Exhibit C
hereto.
Opinion of Special Tax Counsel for the Offerors. At the Closing Time,
the Initial Purchasers shall have received an opinion, dated as of the Closing
Time, of Pitney, Xxxxxx, Xxxx & Xxxxx, special tax counsel to the Offerors, that
(i) the Subordinated Debentures will be classified for United States federal
income tax purposes as indebtedness of the Company, (ii) the Trust will be
classified for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation and (iii) although the discussion
set forth in the Offering Memorandum under the heading "Certain Federal Income
Tax Consequences" does not purport to discuss all possible United States federal
income tax consequences of the purchase, ownership and disposition of the
Capital Securities, such discussion constitutes, in all material respects, a
fair and accurate summary of the United States federal income tax consequences
of the purchase, ownership and disposition of the Capital Securities under
current law. Such opinion may be conditioned on, among other things, the initial
and continuing accuracy of the facts, financial and other information, covenants
and representations set forth in certificates of officers of the Company and
other documents deemed necessary for such opinion.
Opinion of Counsel for Initial Purchasers. At the Closing Time, the
Initial Purchasers shall have received the favorable opinion, dated as of the
Closing Time, of Brown & Wood LLP, counsel for the Initial Purchasers, with
respect to the incorporation and legal existence of the Company, the Series A
Capital Securities, the Indenture, the Series A Capital Securities Guarantee
Agreement, this Agreement, the Registration Rights Agreement, the Offering
Memorandum and other related matters as the Initial Purchasers may require. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of Trustees
of the Trust, officers of the Company and its subsidiaries and certificates of
public officials.
Certificates. At the Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Offering Memorandum, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust, or the Company and its subsidiary considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Initial Purchasers shall have received a certificate of any Chairman, any Vice
Chairman, the Chief Executive Officer, the President or any Executive Vice
President or Senior Vice President of the Company and of the chief financial
officer or the chief accounting officer of the Company and a certificate of an
Administrative Trustee of the Trust, dated as of the Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof were true and correct when
made and are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, and (iii) the Offerors have complied with
all agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Time.
Accountant's Comfort Letter. At the time of execution of this
Agreement, the Initial Purchasers shall have received from Xxxxxx Xxxxxxxx & Co.
a letter dated such date, in form and substance satisfactory to the Initial
Purchasers, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to initial purchasers with respect to
the financial statements and certain financial information contained in the
Offering Memorandum.
Bring-down Comfort Letter. At the Closing Time, the Initial Purchasers
shall have received from Xxxxxx Xxxxxxxx & Co. a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Time.
Maintenance of Rating. At the Closing Time, the Series A Capital
Securities shall be rated at least "BBB-" by Fitch Investors Service ("Fitch")
and the Trust shall have delivered to the Initial Purchasers a letter dated the
Closing Time, from such rating agency, or other evidence satisfactory to the
Initial Purchasers, confirming that the Series A Capital Securities have such
rating; and between the date of this Agreement and the Closing Time, there shall
not have occurred a downgrading in the rating assigned to the Series A Capital
Securities or any of the Company's other debt securities by Fitch, and Fitch
shall not have publicly announced that it has under surveillance or review, with
possible negative implications, or that it otherwise has a negative outlook with
respect to, its rating of any of the Series A Capital Securities or any of the
Company's other debt securities.
Additional Documents. At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with the Registration Rights Agreement,
executed by the Company and the Trust, and such other documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Capital Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties of the
Offerors, or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Offerors in connection with the issuance and sale of
the Capital Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Initial Purchasers and counsel for the Initial
Purchasers.
Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Initial Purchasers by written notice to the
Offerors at any time at or prior to the Closing Time, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 7, 8 and 9 shall survive any such termination
and remain in full force and effect.
Subsequent Offers and Sales of the Capital Securities.
Offer and Sale Procedures. Each of the Initial Purchasers and the
Offerors hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Capital Securities:
Offers and Sales only to Institutional Accredited Investors, Qualified
Institutional Buyers and Non-U.S. Persons. Offers and sales of the Capital
Securities will be made only by the Initial Purchasers or their respective
affiliates thereof qualified to do so in the jurisdictions in which such offers
or sales are made. Each such offer or sale shall only be made (A) to persons
whom the offeror or seller reasonably believes to be qualified institutional
buyers (as defined in Rule 144A under the Securities Act) ("Qualified
Institutional Buyers"), or (B) to a limited number of other institutional
accredited investors (as such term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D) that the offeror or seller reasonably believes to be and, with
respect to sales and deliveries, that are accredited investors ("Institutional
Accredited Investors"), or (C) non-U.S. persons outside the United States to
whom the offeror or seller reasonably believes offers and sales of the Capital
Securities may be made in reliance upon Regulation S under the 1933 Act.
No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be used
in the United States in connection with the offering of the Capital Securities.
Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Capital Security acting as a fiduciary for one or more
third parties in connection with an offer and sale to such purchaser pursuant to
clause (a) above, each third party shall, in the judgment of the applicable
Initial Purchaser, be an Institutional Accredited Investor or a Qualified
Institutional Buyer or a non-U.S. person outside the United States.
Subsequent Purchaser Notification. Each Initial Purchaser will take
reasonable steps to inform, and cause each of its U.S. affiliates to take
reasonable steps to inform, persons acquiring Capital Securities from such
Initial Purchaser or affiliate, as the case may be, in the United States that
the Capital Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933 Act in
reliance on Rule 144A or in accordance with another exemption from registration
under the 1933 Act, as the case may be, and (C) may not be offered, sold or
otherwise transferred except (1) to the Company, (2) outside the United States
in accordance with Regulation S, or (3) inside the United States in accordance
with (x) Rule 144A to a person whom the seller reasonably believes is a
Qualified Institutional Buyer that is purchasing such Securities for its own
account or for the account of a Qualified Institutional Buyer to whom notice is
given that the offer, sale or transfer is being made in reliance on Rule 144A or
(y) an exemption from registration under the 1933 Act (including the exemption
provided by Rule 144), if available.
Minimum Amount. No sale of the Capital Securities to any one
Subsequent Purchaser will be in blocks of less than U.S. $100,000 liquidation
amount.
Restrictions on Transfer. The transfer restrictions and the other
provisions of the Declaration, including the legend required thereby, shall
apply to the Capital Securities except as otherwise agreed by the Offerors and
the Initial Purchasers. Following the sale of the Capital Securities by the
Initial Purchasers to Subsequent Purchasers pursuant to the terms hereof, the
Initial Purchasers shall not be liable or responsible to the Offerors for any
losses, damages or liabilities suffered or incurred by the Offerors, including
any losses, damages or liabilities under the 1933 Act, arising from or relating
to any resale or transfer of any Capital Security.
Delivery of Offering Memorandum. Each Initial Purchaser will deliver
to each purchaser of the Capital Securities from such Initial Purchaser, in
connection with their original distribution of the Capital Securities, a copy of
the Offering Memorandum, as amended and supplemented at the date of such
delivery.
Covenants of the Offerors. Each of the Offerors, jointly and
severally, covenant with each Initial Purchaser as follows:
Due Diligence. In connection with the original distribution of the
Capital Securities, the Offerors agree that, prior to any offer or sale of the
Capital Securities by the Initial Purchasers, the Initial Purchasers and counsel
for the Initial Purchasers shall have the right to make reasonable inquiries
into the business of the Trust, the Company and its subsidiaries. The Offerors
also agree to provide information to each prospective Subsequent Purchaser of
Capital Securities who so requests concerning the Trust, the Company and its
subsidiaries (to the extent that such information is available or can be
acquired and made available to prospective Subsequent Purchasers without
unreasonable effort or expense and to the extent the provision thereof is not
prohibited by applicable law) and the terms and conditions of the offering of
the Securities, as provided in the Offering Memorandum.
Integration. The Offerors agree that they will not and will cause
their Affiliates not to make any offer or sale of securities of the Offerors of
any class if, as a result of the doctrine of "integration" referred to in Rule
502 under the 1933 Act, such offer or sale would render invalid (for the purpose
of (i) the sale of the Capital Securities by the Trust to the Initial
Purchasers, (ii) the resale of the Capital Securities by the Initial Purchasers
to Subsequent Purchasers or (iii) the resale of the Capital Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by Rule 144A or
by Regulation S thereunder or otherwise.
Rule 144A Information. The Company agrees that, in order to render the
Capital Securities eligible for resale pursuant to Rule 144A under the 1933 Act,
while any of the Capital Securities remain outstanding, the Company will make
available, upon request, to any holder of Capital Securities or prospective
purchasers of Capital Securities the information specified in Rule 144A(d)(4),
unless such information is furnished to the Commission pursuant to Section 13 or
15(d) of the 1934 Act (such information, whether made available to holders or
prospective purchasers or furnished to the Commission, is herein referred to as
"Additional Information").
Restriction on Repurchases. Until the expiration of three years (or
such shorter period as may hereafter be referred to in Rule 144(k) (or similar
successor rule)) after the original issuance of the Capital Securities, the
Offerors will not, and will cause their Affiliates not to, purchase or agree to
purchase or otherwise acquire any Capital Securities which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under the 1933 Act),
whether as beneficial owner or otherwise unless, immediately upon any such
purchase, the Offerors or any Affiliate shall submit such securities to the
Trustee for cancellation.
Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each Initial
Purchaser understands that the Capital Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of U.S. persons except in accordance
with Regulation S under the 1933 Act or pursuant to an exemption from the
registration requirements of the 1933 Act. Each Initial Purchaser, jointly and
severally, represent and agree, that, except as permitted below, they have
offered and sold Capital Securities and will offer and sell Capital Securities
(i) as part of their distribution at any time and (ii) otherwise until forty
days after the later of the date upon which the offering of the Capital
Securities commences and the Closing Time, only in accordance with Rule 903 of
Regulation S or Rule 144A under the 1933 Act or to Institutional Accredited
Investors. Accordingly, neither the Initial Purchasers, their Affiliates nor any
persons acting on their behalf have engaged or will engage in any directed
selling efforts with respect to Capital Securities, and the Initial Purchasers,
their Affiliates and any person acting their behalf have complied and will
comply with the offering restriction requirements of Regulation S. Each Initial
Purchaser agree that, at or prior to confirmation of a sale of Capital
Securities (other than a sale of Capital Securities pursuant to Rule 144A or to
Institutional Accredited Investors), they will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from them or through them during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to or for the
account or benefit of U.S. persons (i) as part of their distribution
at any time and (ii) otherwise until forty days after the later of the
date upon which the offering of the Securities commenced and the date
of closing, except in either case in accordance with Regulation S or
Rule 144A under the Securities Act. Terms used above have the meaning
given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
Each Initial Purchaser severally represents and agrees that they have not
entered and will not enter into any contractual arrangements with respect to the
distribution of the Capital Securities, except with their respective affiliates
or with the prior written consent of the Offerors.
Compliance with United Kingdom Law. Each Initial Purchaser severally
represent and agree that (i) they have not offered or sold and, prior to the
expiration of the period of six months from the date hereof, will not offer or
sell any Capital Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (ii) they have only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by them in connection with the issue of the Capital Securities to a
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on, and (iii) it has
complied and will comply with all applicable provisions of the Financial
Services Act 1986 with respect to anything done by it in relation to any Capital
Securities in, from or otherwise involving the United Kingdom.
Compliance with Other Laws. Each Initial Purchaser acknowledges that
no action has been taken to permit a public offering of the Capital Securities
in any jurisdiction outside of the United States where action would be required
for such purpose. Each Initial Purchaser agrees that it will not offer or sell
any Capital Securities in any jurisdiction outside of the United States except
under circumstances that will result in compliance with all applicable laws
thereof.
Indemnification.
Indemnification of Initial Purchasers. The Offerors agree to jointly
and severally indemnify and hold harmless each Initial Purchaser and each
person, if any, who controls any Initial Purchaser within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact included in the Final
Offering Memorandum (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject
to Section 7(d) below) any such settlement is effected with the
written consent of the Offerors; and
against any and all expense whatsoever, as incurred (including,
subject to the third sentence of Section 7(c) hereof, the fees and
disbursements of counsel chosen by the Initial Purchasers), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent (i) arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Offerors by any
Initial Purchaser through KBW expressly for use in the Offering Memorandum (or
any amendment thereto) or (ii) resulting from the fact that one or more Initial
Purchasers sold Capital Securities to a person to whom there was not sent or
given a copy of the Preliminary Offering Memorandum or of the Final Offering
Memorandum as then amended or supplemented (excluding documents incorporated by
reference) if the Offerors previously have furnished copies thereof to such
Initial Purchaser.
Indemnification of Offerors, Directors and Officers. Each Initial
Purchaser agrees, severally, to indemnify and hold harmless the Company, its
directors and officers, the Trust, each of the Administrative Trustees and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Offering
Memorandum in reliance upon and in conformity with written information furnished
to the Company by such Initial Purchaser through KBW expressly for use in the
Offering Memorandum.
Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification could be sought under
this Section 7 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
Contribution. In order to provide for just and equitable contribution
in circumstances under which the indemnification provided for in Section 7
hereof is for any reason held to be unenforceable by an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Initial Purchasers on the other hand from the offering of the Capital Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Offerors, on the one hand, and of the Initial Purchasers,
on the other hand, in connection with the statements or omissions which resulted
in such losses liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Capital Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Initial
Purchasers, bear to the aggregate initial offering price of the Capital
Securities.
The relative fault of the Offerors, on the one hand, and the Initial
Purchasers, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statements of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Offerors and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Capital Securities purchased by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchasers within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each officer and director of the Company, each Administrative
Trustee of the Trust, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company and the Trust. The Initial
Purchasers' obligations to contribute pursuant to this Section 8 are several in
proportion to the number of Capital Securities set forth opposite their
respective names in Schedule A hereto and not joint.
Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or trustees of the Trust submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Initial Purchaser or
controlling person, or by or on behalf of the Trust or the Company, and shall
survive delivery of the Capital Securities to the Initial Purchasers.
Termination of Agreement.
The Initial Purchasers may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Offering Memorandum, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Trust or Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or elsewhere, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Initial Purchasers, impracticable to market the Capital
Securities or to enforce contracts for the sale of the Capital Securities, or
(iii) if trading in any securities of the Company has been suspended or limited
by the Commission, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the over-the-counter market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal, New York or Massachusetts authorities.
If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 7 and 8 shall
survive such termination and remain in full force and effect.
SECTION 11. Default by One or More of the Initial Purchasers. If one
or more of the Initial Purchasers shall fail at the Closing Time to purchase
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Initial Purchasers shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other Initial Purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Initial Purchasers shall
not have completed such arrangements within such 24-hour period, then this
Agreement shall terminate without liability on the part of any non-defaulting
Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchases from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Initial Purchasers or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Offering Memorandum or
in any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section 11.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Initial Purchasers c/o Keefe, Xxxxxxxx &
Xxxxx, Inc. at Two World Trade Center, New York, New York 10048, Attention of
Xxxx X. Xxxxx, with a copy to Brown & Wood LLP, One World Trade Center, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxxx Xxxxxxxx, Esq.; notices
to the Offerors shall be directed to HUBCO, Inc., 0000 XxxXxxxxx Xxxxxxxxx,
Xxxxxx, Xxx Xxxxxx 00000, Attention of X. Xxxx Van Borkulo-Xxxxx, Esq. with a
copy to Pitney, Xxxxxx, Xxxx & Xxxxx, Attention of Xxxxxx Xxxxx, Esq.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Initial Purchasers and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchasers and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers and the
Offerors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Initial Purchasers shall be deemed to be a successor by reason merely of
such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Offerors in accordance with its terms.
The execution and delivery of this Agreement by the Offerors and its acceptance,
execution and delivery by or on behalf of the Initial Purchasers may be
evidenced by an exchange of telecopied or other written communications.
Very truly yours,
HUBCO, Inc.
By: X. XXXX VAN BORKULO-XXXXX, ESQ./S/
Name:D. Xxxx XxxXxxxxxx-Xxxxx, Esq.
Title:Executive Vice President
Corporate Secretary
HUBCO Capital Trust I
By: HUBCO, Inc.
as Sponsor
By: X. XXXX VAN BORKULO-XXXXX, ESQ./S/
Name:D. Xxxx XxxXxxxxxx-Xxxxx, Esq.
Title:Executive Vice President
Corporate Secretary
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
XXXXXXXXXX XXXX & XXXX INCORPORATED
XXXX, XXXX & CO.
XXXXXX XXXXXXX INCORPORATED
By: XXXXX, XXXXXXXX & XXXXX, INC.
By: XXXXX XXXXXX/S/
Name: Xxxxx Xxxxxx
Title: Vice President
Sch A-1
SCHEDULE A
Number of Capital
Name of Initial Purchasers Securities
Xxxxx, Xxxxxxxx & Xxxxx, Inc. ................................ 35,000
Xxxxxxxxxx Xxxx & Xxxx Incorporated. ......................... 5,000
Xxxx, Xxxx & Co. ............................................. 5,000
Xxxxxx Xxxxxxx Incorporated................................... 5,000
Total ...................................................... 50,000
A-1
EXHIBIT A
Opinion of Pitney, Xxxxxx, Xxxx & Xxxxx, Counsel for the Company to
the effect that:
B-1
EXHIBIT B
Form of Opinion of Xxxxxx, Xxxxxxx, Arsht & Xxxxxxx, Special Delaware
Counsel to the Offerors.
C-1
EXHIBIT C
Form of Opinion of Xxxxx, Xxxxxx & Xxxxxx, LLP
