1
EXHIBIT 1.1
350,000 SHARES
NORTHEAST BANCORP
COMMON STOCK, $1.00 PAR VALUE
UNDERWRITING AGREEMENT
Advest, Inc.
Xxx Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs and Mesdames:
Square Lake Holding Corporation, a Maine corporation (the "Selling
Shareholder"), proposes, subject to the terms and conditions stated herein, to
sell to Advest, Inc. (the "Underwriter"), an aggregate of 350,000 shares (the
"Shares") of Common Stock, $1.00 par value (the "Common Stock"), of Northeast
Bancorp (the "Company")
The Selling Shareholder, the Company, and Northeast Bank, F.S.B., a
wholly-owned subsidiary of the Company (the "Bank"), intending to be legally
bound, hereby confirm their agreement with the Underwriter as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER. The
Selling Shareholder represents and warrants to, and agrees with, the Underwriter
that:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of the Selling Shareholder, and assuming due execution by the
Company, the Bank and the Underwriter, constitutes the valid and binding
agreement of the Selling Shareholder, enforceable against the Selling
Shareholder in accordance with its terms (except in all cases to the extent as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, moratorium, readjustment of debt, fraudulent
conveyance, or similar laws relating to or affecting creditors' rights generally
or general principles of equity, whether considered in a proceeding in equity or
at law, and except as the enforcement of rights to indemnity and contribution
under this Agreement may be limited under applicable securities laws or the
public policy underlying such laws).
(b) The execution and delivery by the Selling Shareholder of, and the
performance by the Selling Shareholder of its obligations under, this Agreement
and the Power of Attorney appointing certain individual(s) as such Selling
Shareholder's attorney(s)-in-fact to the extent set forth therein, relating to
the transactions contemplated hereby and by the Registration Statement (as
hereinafter defined) (the "Power of Attorney") will not (with or without the
giving of notice or the passage of
2
time or both) (i) conflict with any term or provision of the Selling
Shareholder's articles of incorporation or bylaws or other organizational
documents, as amended, (ii) result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which the
Selling Shareholder is a party or to which its properties or assets is subject
or (iii) conflict with or violate any law, statute, rule or regulation or any
order, judgment or decree of any court or governmental agency or body having
jurisdiction over the Selling Shareholder or any of the Selling Shareholder's
properties or assets.
(c) The Selling Shareholder will have, as of the Time of Delivery (as
hereinafter defined), valid title to the Shares and the legal right and power,
and all authorization and approval required by law, to enter into this Agreement
and the Power of Attorney and to sell, transfer and deliver the Shares.
(d) The Power of Attorney has been duly authorized, executed and
delivered by the Selling Shareholder and is a valid and binding agreement of the
Selling Shareholder.
(e) Upon delivery of the certificates for the Shares properly indorsed
to the Underwriter and payment of the purchase price therefor pursuant to this
Agreement, assuming the Underwriter has no notice of adverse claim and is acting
in good faith, title to such Shares will be passed to the Underwriter, free and
clear of all liens, security interests, pledges, charges, equities, and other
encumbrances, other than as created by or through the Underwriter.
(f) The Selling Shareholder does not require any consent, approval,
authorization, order or declaration of or from, or registration, qualification
or filing with, any court or governmental agency or body in connection with the
sale of the Shares to be sold by the Selling Shareholder or the consummation of
the transactions contemplated by this Agreement, except for the registration of
the Shares under the Act, of the Common Stock under the Exchange Act (as
hereinafter defined) and such as may be required by the NASD (as hereinafter
defined) and under state securities or blue sky laws in connection with the
offer, sale and distribution of the Shares by the Underwriter.
(g) The Selling Shareholder has not (i) taken, directly or indirectly,
any action designed to cause or result in, or that has constituted or 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
Shares or (ii) since the filing of the Registration Statement (A) sold, bid for,
purchased or paid anyone any compensation for soliciting purchases of, the
Shares or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company, other than
pursuant to this Agreement.
(h) The Selling Shareholder has read the Registration Statement, each
Preliminary Prospectus (as hereinafter defined), and the Prospectus (as
hereinafter defined) and, to the extent of any statement or omission from the
Registration Statement, any Preliminary Prospectus, or the Prospectus which were
made or omitted in reliance upon and in conformity with information
2-
3
furnished to the Company by the Selling Shareholder for use therein, to the best
knowledge of the Selling Shareholder, the Registration Statement, at the
effective date, each Preliminary Prospectus, at its date of issuance, and the
Prospectus, from its date of issuance through the Time of Delivery, did not and
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading in light
of the circumstances in which they were made.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE BANK. Each of
the Company and the Bank jointly and severally represents and warrants to the
Underwriter and the Selling Shareholder as of the date hereof and as of the Time
of Delivery, and agrees with, the Underwriter and the Selling Shareholder that:
(a) A registration statement on Form S-3 (File No. 333-53313) with
respect to the offer and sale of the Shares, including a related preliminary
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 become effective under the Act and information
has been omitted therefrom in accordance with Rule 430A 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 or permitted by Rule 424(b) under the Act and as have been provided to and
approved by the Underwriter, or (ii) if such registration statement, as it may
have been amended, has not become effective under the Act, an amendment to such
registration statement, including a form of prospectus, a copy of which
amendment has been provided to and approved by the Underwriter prior to the
execution of this Agreement. As used in this Agreement, the term "Registration
Statement" means such registration statement, as amended at the time when it was
or is declared effective, including (A) all financial statements, schedules and
exhibits thereto, (B) all documents (or portions thereof) incorporated by
reference therein, and (C) any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter defined); the
term "Preliminary Prospectus" means each prospectus subject to completion
included in such registration statement or any amendment or post-effective
amendment thereto (including the prospectus subject to completion, if any,
included in the Registration Statement at the time it was or is declared
effective), including all documents (or portions thereof) incorporated by
reference therein; and the term "Prospectus" means the prospectus first filed
with the Commission pursuant to Rule 424(b) under the Act or, if no prospectus
is required to be so filed, such term means the prospectus included in the
Registration Statement, in either case, including all documents (or portions
thereof) incorporated by reference therein. As used herein, any reference to any
statement or information as being "made," "included," "contained," "disclosed"
or "set forth" in any Preliminary Prospectus, a Prospectus, or any amendment or
supplement thereto, or the Registration Statement or any amendment thereto (or
other similar references) shall refer both to information and statements
actually appearing in such document as well as information and statements
incorporated by reference therein.
3-
4
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus and no proceeding for that purpose has
been instituted or, to the knowledge of the Company or the Bank, threatened by
the Commission or the securities authority of any state or other jurisdiction.
If the Registration Statement has become effective under the Act, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued and no proceeding for that purpose has been instituted or to the
knowledge of the Company or the Bank, threatened or contemplated by the
Commission or the securities authority of any state or other jurisdiction.
(c) When any Preliminary Prospectus was filed with the Commission, at
the time it was filed, it 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. Each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference in the
Prospectus, when filed with the Commission, conformed or will conform in all
material respects to the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder. When the Registration
Statement or any amendment thereto was or is declared effective, and at the Time
of Delivery (as hereinafter defined), it (i) contained and 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 and 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 amendment or supplement thereto is filed with the Commission
pursuant to Rule 424(b) (or, if the Prospectus 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 at the Time of Delivery, the Prospectus, as amended or
supplemented at any such time, (i) contained and 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 and 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 (c) do not apply to statements or omissions made in
the Registration Statement or any amendment thereto, any Preliminary Prospectus,
or the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by the Underwriter
or the Selling Shareholder specifically for use therein. It is understood that
the statements set forth in the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto (W) in the last
paragraph of the cover page of the Prospectus, (X) on the inside cover page with
respect to stabilization and passive market making, and (Y) in the third, and
eighth paragraphs and the list of Underwriters under the section entitled
"Underwriting," constitute the only written information furnished to the Company
by or on behalf of the Underwriter specifically for use in the Registration
Statement, any Preliminary Prospectus, or any amendment thereto or the
Prospectus and any amendment or supplement thereto, as the case may be.
4-
5
(d) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or the Bank, threatened to which the Company or any of
its subsidiaries listed on Exhibit A hereto is a party or to which any of the
properties of the Company or any subsidiary is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described and there are no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
(e) Each of the Company and each of its subsidiaries (except the Bank)
have been duly incorporated, are validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and each has full
power and authority (corporate and other) to own or lease its properties and
conduct its business as described in the Prospectus. The Bank has been duly
organized and is validly existing as a federally chartered stock savings bank
with full power and authority (corporate and other) to own or lease its
properties and to conduct its business as described in the Prospectus. The
Company and the Bank have full power and authority (corporate and other) to
enter into this Agreement and to perform its obligations hereunder. Each of the
Company and its subsidiaries is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to require
such qualification, except where the failure to so qualify would not have a
material adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole.
(f) The Company's authorized, issued and outstanding capital stock is
as disclosed in the Prospectus as of the date set forth therein (except for
subsequent issuance, if any, pursuant to reservations, agreements, or employee
benefit plans described in the Prospectus or pursuant to the exercise of
convertible securities or options described in the Prospectus). All of the
issued shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the descriptions
of the Common Stock contained in the Prospectus. None of the issued and
outstanding shares of capital stock of the Company or any of its subsidiaries
has been issued in violation of any statutory preemptive rights of shareholders.
(g) All of the issued and outstanding shares of capital stock of each
subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company or one of its
subsidiaries, free and clear of all liens, security interests, pledges, charges,
encumbrances or claims of any nature whatsoever. The Company does not own or
control, directly or indirectly any corporation, association, or other entity
other than the subsidiaries listed in Exhibit 21.1 to the Annual Report on Form
10-K for the Company's fiscal year ended June 30, 1997 or as disclosed in the
Prospectus.
(h) Except as disclosed in the Prospectus (and except for subsequent
issuances of options, capital stock, or other rights under agreements, employee
benefit plans, or other arrangements referred to in the Prospectus), there are
no outstanding (i) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or
5-
6
any of its subsidiaries, (ii) warrants, rights or options to subscribe for or
purchase from the Company or any of its subsidiaries any such capital stock or
any such convertible or exchangeable securities or obligations or (iii)
obligations of the Company or any of its subsidiaries to issue any shares of
capital stock, any such convertible or exchangeable securities or obligations,
or any such warrants, rights or options.
(i) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) neither the
Company nor any of its subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its subsidiaries taken
as a whole, (ii) the Company has not purchased any of its outstanding capital
stock or declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock, (iii) there has not been any material change in the
capital stock, or a material increase in long-term debt or short-term debt of
the Company or any of its subsidiaries, and (iv) there has not been any material
adverse change, or any development which is reasonably likely to have a material
adverse effect on the Company or its subsidiaries taken as a whole.
(j) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be owned by
such person or, requiring the Company to include such securities in the
securities registered pursuant to the Registration Statement (or any such right
has been effectively waived) or requiring the registration of any securities
pursuant to any other registration statement filed by the Company under the Act.
Neither the filing of the Registration Statement nor the offering or sale of
Shares as contemplated by this Agreement gives any security holder of the
Company any rights for or relating to the registration of any shares of Common
Stock or any other capital stock of the Company, except such as have been
satisfied or waived.
(k) Except as disclosed in the Registration Statement or the
Prospectus, neither the Company nor any of its subsidiaries is, or with the
giving of notice or passage of time or both would be, in material violation of
its articles of incorporation or bylaws or in material default under any
material indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or to which any of their respective material properties or assets are
subject.
(l) The Company and its subsidiaries have good and marketable title in
fee simple to all real property, if any, and good title to all personal property
owned by them, in each case free and clear of all liens, security interests,
pledges, charges, encumbrances, mortgages and defects, except such as are
disclosed in the Prospectus (including the financial statements thereto) or such
as would not have a material adverse effect on the financial position, results
of operations or business of the Company and its subsidiaries taken as a whole;
and any real property and buildings held under lease by the Company or any of
its subsidiaries are held under valid, subsisting and enforceable leases, with
6-
7
such exceptions as are disclosed in the Prospectus or are not material to the
Company or any subsidiary.
(m) The Company does not require any consent, approval, authorization,
order or declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body in connection with the sale of the
Shares or the consummation of the transactions contemplated by this Agreement,
except the registration of the Shares under the Act (which, if the Registration
Statement is not effective as of the time of execution hereof, shall be obtained
as provided in this Agreement) and of the Common Stock under the Exchange Act,
and such as may be required by the National Association of Securities Dealers,
Inc. (the "NASD") or under state securities or blue sky laws in connection with
the offer, sale and distribution of the Shares by the Underwriter.
(n) Other than as disclosed in the Prospectus, there is no litigation,
arbitration, claim, proceeding (formal or informal) or investigation (including
without limitation, any bank or savings and loan holding company regulatory
proceeding) pending or, to the knowledge of the Company or the Bank, threatened
in which the Company or any of its subsidiaries is a party or of which any of
their respective properties or assets are the subject which, if determined
adversely to the Company or any subsidiary, would individually or in the
aggregate have a material adverse effect on the financial position, results of
operations, or business of the Company and its subsidiaries taken as a whole.
Neither the Company nor any subsidiary is in violation of, or in default with
respect to, any law, statute, rule, regulation, order, judgment or decree,
except as described in the Prospectus or such as do not and will not
individually or in the aggregate have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole.
(o) Xxxxx, Xxxxxx & Xxxxx, Limited Liability Company, which has
expressed their opinion with respect to certain financial statements of the
Company and its consolidated subsidiaries included in the Registration Statement
and the Prospectus, are independent public accountants as required by the Act,
the Exchange Act and the respective rules and regulations of the Commission
thereunder.
(p) The consolidated financial statements and schedules (including the
related notes) of the Company and its consolidated subsidiaries included in the
Registration Statement, the Prospectus and/or any Preliminary Prospectus were
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved and fairly present the
financial position and results of operations of the Company and its
subsidiaries, on a consolidated basis, at the dates and for the periods
presented. The selected financial data set forth under the caption "Selected
Financial Information" in the Prospectus fairly present, on the basis stated in
the Prospectus, the information included therein, and have been compiled on a
basis consistent with that of the audited financial statements included in the
Registration Statement. The supporting notes and schedules included in the
Registration Statement, the Prospectus and/or any Preliminary Prospectus fairly
state in all material respects the information required to be stated therein in
relation to the financial statements taken as a whole. The unaudited interim
consolidated financial statements included or
7-
8
incorporated by reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of Rule 10-01 of
Regulation S-X under the Act.
(q) This Agreement has been duly authorized, executed and delivered by
each of the Company and the Bank and, assuming due execution by the Underwriter,
constitutes the valid and binding agreement of each of the Company and the Bank
enforceable against the Company and the Bank in accordance with its terms
(except in all cases to the extent as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, moratorium,
readjustment of debt, fraudulent conveyance, or similar laws relating to or
affecting creditors' rights generally or general principles of equity, whether
considered in a proceeding in equity or at laws, and except as the
enforceability of rights to indemnity and contribution under this Agreement may
be limited under applicable securities laws or the public policy underlying such
laws).
(r) The performance of this Agreement and the consummation of the
transactions herein contemplated will not (with or without the giving of notice
or the passage of time or both) in any respect material to the condition
(financial or otherwise), business or results of operations of the Company and
its subsidiaries, taken as a whole, (i) conflict with or violate any term or
provision of the articles of incorporation or bylaws or other organizational
documents of the Company or any subsidiary, (ii) result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any subsidiary is a party or to which any of
their respective properties or assets is subject, (iii) conflict with or violate
any law, statute, rule or regulation or any order, judgment or decree of any
court or governmental agency or body having jurisdiction over the Company or any
subsidiary or any of their respective properties or assets or (iv) result in a
breach, termination or lapse of the corporate power and authority of the Company
or any subsidiary to own or lease and operate their respective assets and
properties and conduct their respective business as described in the Prospectus.
(s) The Company has not distributed and will not distribute prior to
the Time of Delivery any offering material in connection with the offering and
sale of the Shares other than the Registration Statement, a Preliminary
Prospectus, the Prospectus and other material, if any, permitted by the Act.
(t) The Company and the Bank have not, and its officers, directors or
affiliates have not (i) taken, directly or indirectly, any action designed to
cause or result in, or that has constituted or 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 Shares or (ii) except
pursuant to this Agreement, since the filing of the Registration Statement (A)
sold, bid for, purchased or paid anyone any compensation for soliciting
purchases of, the Shares or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
(u) The Company has not been advised, and has no reason to believe,
that either it or any of its subsidiaries is not conducting business in
compliance with applicable laws, rules, and regulations of the jurisdictions in
which it is conducting business, including, without limitation, all applicable
8-
9
local, state and federal environmental laws and regulations; except where
failure to be so in compliance would not materially adversely affect the
condition (financial or otherwise), business, or results of operations of the
Company and its subsidiaries, taken as a whole.
(v) The Company or its subsidiaries own or possess adequate right to
use all material patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, franchises, trade secrets,
proprietary or other confidential information and intangible properties and
assets (collectively, "Intangibles"), the loss of any of which would have a
material adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole; and, neither the
Company nor any subsidiary has infringed or is infringing, and neither the
Company nor any subsidiary has received notice of infringement with respect to,
asserted Intangibles of others.
(w) The Company and its subsidiaries have filed all foreign, federal,
state and local tax returns that are required to be filed by them and have paid
all taxes shown as due on such returns as well as all other taxes, assessments
and governmental charges that are due and payable; and no material deficiency
with respect to any such return has been assessed or proposed.
(x) Except for such plans that are expressly disclosed in the
Prospectus, the Company and its subsidiaries do not maintain, contribute to or
have any material liability with respect to any employee benefit plan, profit
sharing plan, employee pension benefit plan, employee welfare benefit plan,
equity-based plan or deferred compensation plan or arrangement ("Plans") that
are subject to the provisions of the Employee Retirement Income Security Act of
1974, as amended, or the rules and regulations thereunder ("ERISA"). All Plans
are in compliance in all material respects with all applicable laws, including
but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the
"Code"), and have been operated and administered in all material respects in
accordance with their terms. No Plan is a defined benefit plan or multi employer
plan. The Company does not provide retiree life and/or retiree health benefits
or coverage for any employee or any beneficiary of any employee after such
employee's termination of employment, except as required by Section 4980B of the
Code or under a Plan which is intended to be "qualified" under Section 401(a) of
the Code. No material liability has been, or could reasonably be expected to be,
incurred under Title IV of ERISA or Section 412 of the Code by any entity
required to be aggregated with the Company or any of the Subsidiaries pursuant
to Section 4001(b) of ERISA and/or Section 414(b) or (c) of the Code (and the
regulations promulgated thereunder) with respect to any "employee pension
benefit plan" which is not a Plan. As used in this subsection, the terms
"defined benefit plan," "employee benefit plan," "employee pension benefit
plan," "employee welfare benefit plan" and "multi employer plan" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
(y) No material labor dispute exists with the Company's or any
subsidiary's employees, and no such labor dispute is threatened. The Company has
no knowledge of any existing or threatened labor disturbance by the employees of
any of its principal agents, suppliers, contractors
9-
10
or customers that would have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole.
(z) The Company and its subsidiaries have received all material
permits, licenses, franchises, authorizations, registrations, qualifications and
approvals (collectively, "Permits") of governmental or regulatory authorities
(including, without limitation, state and/or other bank or savings and loan
holding company regulatory authorities) as may be required of them to own their
properties and conduct their businesses in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the
Prospectus; and the Company and its subsidiaries are operating in substantial
compliance with, and have performed all of their material obligations with
respect to, such Permits required under applicable laws in connection with the
business and operations of the Company and its subsidiaries, and no event has
occurred which allows or, after notice or lapse of time or both, would allow
revocation or termination thereof or result in any other material impairment of
the rights of the holder of any such Permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as described in
the Prospectus, such Permits contain no restrictions that materially affect the
ability of the Company and its subsidiaries to conduct their businesses and no
bank or savings and loan holding company regulatory agency or body has issued
any order or decree impairing, restricting or prohibiting the payment of
dividends by any of its subsidiaries to the Company.
(aa) Since the date of the Prospectus the Company and each of its
subsidiaries has filed, or has had filed on its behalf, on a timely basis, all
materials, reports, documents and information, including but not limited to
annual reports and reports of examination with each applicable bank or savings
and loan regulatory authority, board or agency, which are required to be filed
by it, except where the failure to have timely filed such materials, reports,
documents and information would not have a material adverse effect on the
financial position, results of operations or business of the Company and its
subsidiaries taken as a whole.
(bb) Neither the Company, nor any subsidiary is an "investment company"
or a company "controlled" by an investment company as such terms are defined in
Sections 3(a) and 2(a)(9), respectively, of the Investment Company Act of 1940,
as amended (the "Investment Company Act"), and, if the Company or any subsidiary
conducts its business as set forth in the Registration Statement and the
Prospectus, will not become an "investment company" and will not be required to
register under the Investment Company Act.
3. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
herein set forth, the Selling Shareholder agrees to sell to the Underwriter, and
the Underwriter agrees to purchase from the Selling Shareholder, at a purchase
price of [__________] Dollars and [_________] cents ($[__________]) per share
(the "Per Share Price"), the Shares.
4. OFFERING BY THE UNDERWRITER. Upon the authorization by the
Underwriter of the release of the Shares, the Underwriter proposes to offer the
Shares for sale upon the terms and conditions disclosed in the Prospectus.
10-
11
5. DELIVERY OF SHARES; CLOSING. Certificates in definitive form for the
Shares to be purchased by the Underwriter hereunder, and in such denominations
and registered in such names as the Underwriter may request upon at least 48
hours' prior notice to the Company, shall be delivered by or on behalf of the
Selling Shareholder to the Underwriter, against payment by the Underwriter on
its behalf of the purchase price therefor by wire transfer of immediately
available funds to such accounts as the Selling Shareholder shall designate in
writing. The closing of the sale and purchase of the Shares shall be held at the
offices of Xxxxx Xxxxxx & Xxxxxx, LLP, CityPlace, 35th Floor, Hartford,
Connecticut 06103-3488, except that physical delivery of such certificates shall
be made at the office of The Depository Trust Company, 00 Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. The time and date of such delivery and payment shall
be at 10:00 a.m., New York, New York time, on the fourth (4th) full business
day after this Agreement is executed or at such other time and date, not later
than five (5) full business days after the execution of this Agreement, as the
Underwriter and the Selling Shareholder may agree upon in writing. Such time and
date for delivery is herein called the "Time of Delivery." The Selling
Shareholder will make such certificates available for checking and packaging at
least 24 hours prior to the Time of Delivery at the office of The Depository
Trust Company, 00 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
location specified by you in writing at least 48 hours prior to the Time of
Delivery.
6. COVENANTS OF THE SELLING SHAREHOLDER. The Selling Shareholder
covenants and agrees with the Underwriter that:
(a) The Selling Shareholder will cooperate to the extent necessary to
cause the Registration Statement, if not effective prior to the execution and
delivery of this Agreement, to become effective.
(b) The Selling Shareholder will pay all federal and other taxes, if
any on the transfer or sale of the Shares.
(c) The Selling Shareholder will do or perform all things required to
be done or performed by the Selling Shareholder prior to the Time of Delivery to
satisfy all conditions precedent to the delivery of the Shares pursuant to this
Agreement.
(d) During the period beginning from the date hereof and continuing to
and including the date 40 days after the date of the Prospectus, the Selling
Shareholder will not, without the prior written consent of the Underwriter,
directly or indirectly (i) offer, sell, contract to sell or otherwise dispose
of, any shares of Common Stock or securities convertible into or exercisable or
exchangeable for shares of Common Stock or (ii) enter into any swap or other
agreement or any transaction that transfers, in whole or in part, the economic
consequences of ownership of shares of Common Stock whether any such swap or
other agreement is to be settled by delivery of shares of Common Stock, other
securities, cash or otherwise.
11-
12
(e) The Selling Shareholder has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of Common Stock to
facilitate the sale or resale of the Shares.
7. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriter that:
(a) The Company will endeavor to cause the Registration Statement, if
not effective prior to the execution and delivery of this Agreement, to become
effective. If the Registration Statement has been declared effective prior to
the execution and delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by you, subparagraph (4)) of Rule
424(b) within the time period required under Rule 424(b) under the Act. The
Company will advise you promptly of any such filing pursuant to Rule 424(b). The
Company, during the period when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act, will file all documents required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act.
(b) The Company will not file with the Commission the Prospectus or the
amendment referred to in Section 1(a) hereof, any amendment or supplement to the
Prospectus or any amendment to the Registration Statement unless the Underwriter
has received a reasonable period of time to review any such proposed amendment
or supplement and consented to the filing thereof and will endeavor to cause any
such amendment to the Registration Statement to be declared effective as
promptly as possible. Upon the request of the Underwriter or counsel for the
Underwriter, the Company will promptly prepare and file with the Commission, in
accordance with the rules and regulations of the Commission, any amendments to
the Registration Statement or amendments or supplements to the Prospectus that
may be necessary or advisable in connection with the distribution of the Shares
by the Underwriter and will endeavor to cause any such amendment to the
Registration Statement to be declared effective as promptly as possible. If
required, the Company will file any amendment or supplement to the Prospectus
with the Commission in the manner and within the time period required by Rule
424(b) under the Act. The Company will advise the Underwriter, promptly after
receiving notice thereof, of the time when the Registration Statement or any
amendment thereto
12-
13
has been filed or declared effective or the Prospectus or any amendment or
supplement thereto has been filed and will provide evidence to the Underwriter
of each such filing or effectiveness.
(c) The Company will advise the Underwriter promptly after receiving
notice or obtaining knowledge of (i) when any post-effective amendment to the
Registration Statement is filed with the Commission, (ii) the receipt of any
comments from the Commission concerning the Registration Statement, (iii) when
any post-effective amendment to the Registration Statement becomes effective, or
when any supplement to the Prospectus or any amended Prospectus has been filed,
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any part thereof or any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, (v) the suspension of the qualification
of the Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, (vi) any request made by the
Commission or any securities authority of any other jurisdiction for amending
the Registration Statement, for amending or supplementing the Prospectus or for
additional information. The Company will use its reasonable efforts to prevent
the issuance of any such stop order or suspension and, if any such stop order or
suspension is issued, to obtain the withdrawal thereof as promptly as possible.
(d) If the delivery of a prospectus relating to the Shares is required
under the Act at any time prior to the expiration of nine months after the date
of the Prospectus and if at such time any events have occurred as a result of
which the Prospectus as then amended or supplemented would include an 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, or if for any reason it is necessary
during such same period to amend or supplement the Prospectus, the Company will
promptly notify the Underwriter and upon its request (but at the Company's
expense) prepare and file with the Commission an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such compliance
and will furnish without charge to the Underwriter and to any dealer in
securities as many copies of such amended or supplemented Prospectus as the
Underwriter may from time to time reasonably request.
(e) The Company will cooperate with the Underwriter in connection with
the qualification or registration of the Shares for offering and sale under the
securities or blue sky laws of such jurisdictions as the Underwriter may request
and will continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Shares have been qualified as above provided.
(f) The Company will promptly provide the Underwriter, without charge,
(i) 2 manually executed copies of the Registration Statement as originally filed
with the Commission and of each amendment thereto, including all exhibits and
all documents or information incorporated by reference therein, (ii) so long as
a prospectus relating to the Shares is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the Prospectus or any amendment
or supplement
13-
14
thereto as the Underwriter may reasonably request. The terms "amendment" and
"supplement" as used in this Agreement shall include all documents subsequently
filed by the Company with the Commission pursuant to the Exchange Act, as
amended, that are deemed to be incorporated by reference in the Prospectus.
(g) The Company will make generally available to its security holders
an earnings statement of the Company as soon as practicable, but in no event
later than 15 months after the end of the Company's current fiscal quarter,
covering a period of at least 12 months beginning after the effective date of
the Registration Statement (which need not be audited), but beginning not later
than 4 months after such effective date, which will satisfy the provisions of
the last subsection of Section 11(a) of the Act and Rule 158 thereunder.
(h) During the period beginning from the date hereof and continuing to
and including the date 40 days after the date of the Prospectus, the Company
will not, and will cause its officers and directors not to, without the prior
written consent of the Underwriter, directly or indirectly (i) offer, sell,
contract to sell or otherwise dispose of, any shares of Common Stock or
securities convertible into or exercisable or exchangeable for shares of Common
Stock or (ii) enter into any swap or other agreement or any transaction that
transfers, in whole or in part, the economic consequences of ownership of shares
of Common Stock whether any such swap or other agreement is to be settled by
delivery of shares of Common Stock, other securities, cash or otherwise; except
for the sale of the Shares hereunder and except for the issuance of Common Stock
upon the exercise of stock options or warrants or the conversion of convertible
securities outstanding on the date of this Agreement to the extent that such
stock options, warrants and convertible securities are disclosed in the
Prospectus or except for the grant to employees of stock options to purchase
Common Stock.
(i) During the period of three years after the effective date of the
Registration Statement, the Company will furnish to the Underwriter without
charge, (i) copies of all reports or other communications (financial or other)
furnished to shareholders and (ii) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission, the
NASD or any national securities exchange.
(j) Prior to the termination of the underwriting contemplated by this
Agreement, neither the Company nor any of its officers, directors or affiliates
will (i) take, directly or indirectly, any action designed to cause or to result
in, or that might reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of the Company or
(ii) sell, bid for, purchase (except pursuant to previously authorized dividend
reinvestment purchases) or pay anyone any compensation for soliciting purchases
of, the Shares.
(k) In case of any event, at any time within the period during which a
prospectus is required to be delivered under the Act, as a result of which any
Preliminary Prospectus or the Prospectus, as then amended or supplemented, would
contain an untrue statement of a material fact, or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or, if it is necessary
at any time to amend
14-
15
any Preliminary Prospectus or the Prospectus to comply with the Act or any
applicable securities or blue sky laws, the Company promptly will prepare and
file with the Commission, and any applicable state securities commission, an
amendment, supplement or document that will correct such statement or omission
or effect such compliance and will furnish to the Underwriter such number of
copies of such amendment(s), supplement(s) or document(s) as the Underwriter may
reasonably request. For purposes of this subsection (k), the Company will
provide such information to the Underwriter, the Underwriter's counsel and
counsel to the Company as shall be necessary to enable such persons to consult
with the Company with respect to the need to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or file any
document, and shall furnish to the Underwriter and the Underwriter's counsel
such further information as each may from time to time reasonably request.
8. EXPENSES.
(a) The Company and the Selling Shareholder will pay all costs and
expenses incident to the performance of the obligations of the Company and the
Selling Shareholder under this Agreement, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated pursuant to
Section 11 hereof, including, without limitation, all costs and expenses
incident to (i) the printing of and mailing expenses associated with the
Registration Statement, any Preliminary Prospectus, and the Prospectus and any
amendments or supplements thereto, this Agreement, and related documents
(collectively, the "Underwriting Documents") and the preliminary Blue Sky
memorandum relating to the offering prepared by Xxxxx Xxxxxx & Xxxxxx, LLP,
counsel to the Underwriter (collectively with any supplement thereto, the
"Preliminary Blue Sky Memorandum"); (ii) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation
and, if applicable, filing of the Registration Statement (including all
amendments thereto), any Preliminary Prospectus, the Prospectus and any
amendments and supplements thereto, the Underwriting Documents and the
Preliminary Blue Sky Memorandum; (iii) the delivery of copies of the foregoing
documents to the Underwriter; (iv) the filing fees of the Commission and the
NASD relating to the Shares; (v) the preparation, issuance and delivery to the
Underwriter of any certificates evidencing the Shares, including transfer
agent's and registrar's fees; (vi) the qualification of the Shares for offering
and sale under state securities and blue sky laws, including filing fees and
fees and disbursements of counsel for the Underwriter (and local counsel
therefor) relating thereto; (vii) any expenses for travel, lodging and meals
incurred by the Company and any of its officers, directors and employees in
connection with any meetings with prospective investors in the Shares; (viii)
the costs of advertising the offering, including, without limitation, with
respect to the placement of "tombstone" advertisements in publications selected
by the Underwriter; and (ix) all other costs and expenses reasonably incident to
the performance of the Company's and the Selling Shareholder's obligations
hereunder that are not otherwise specifically provided for in this Section 8.
(b) The Selling Shareholder agrees to pay or cause to be paid all
taxes, if any, on the transfer and sale of the Shares.
15-
16
9. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter hereunder to purchase and pay for the Shares to be delivered at the
Time of Delivery shall be subject, in its discretion, to the accuracy of the
representations and warranties of each of the Company, the Bank, and the Selling
Shareholder contained herein as of the date hereof and as of the Time of
Delivery, to the accuracy of the statements of the Company's officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Shareholder of their respective covenants and agreements hereunder, and
to the following additional conditions precedent:
(a) If the registration statement as amended to date has not become
effective prior to the execution of this Agreement, such registration statement
shall have been declared effective not later than 5:30 p.m. Hartford,
Connecticut time, on the date of this Agreement or such later date and/or time
as shall have been consented to by you in writing. If required, the Prospectus
and any amendment or supplement thereto shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing and in accordance with Section 5(a) of this Agreement; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceedings for that purpose shall have
been instituted, threatened or, to the knowledge of the Company and the
Underwriter, contemplated by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Underwriter.
(b) The Underwriter shall have received a copy of an executed lock-up
agreement from the Company, the Selling Shareholder, each of the Company's
officers and directors and certain shareholders of Common Stock.
(c) You shall have received an opinion, dated the Time of Delivery, of
Carlton, Fields, Xxxx, Xxxxxxxx, Xxxxx & Xxxxxx, P.A., counsel for the Company
and the Selling Shareholder, in form and substance satisfactory to you and your
counsel, to the effect that:
(1) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Maine and has the corporate power and authority to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus and to enter into this Agreement and
perform its obligations hereunder. The Company is duly qualified to
transact business as a foreign corporation and is in good standing
under the laws of each other jurisdiction in which it owns or leases
property, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not have a
material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries taken as a
whole.
(2) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus as of the date set forth
therein (except for subsequent issuance, if any, pursuant to
reservations, agreements, or employee benefit plans described in the
Prospectus or pursuant to the exercise of convertible securities or
options described in the Prospectus). All of the issued and outstanding
Shares have been duly authorized and validly issued, are
16-
17
fully paid and nonassessable and conform to the description of the
Common Stock contained in the Prospectus. None of the Shares have been
issued in violation of any statutory or any other preemptive rights of
shareholders, and no person or entity (including any holder of
outstanding shares of Common Stock of the Company or capital stock of
its subsidiaries) has any statutory or any other preemptive or other
rights to subscribe for any of the Shares.
(3) To counsel's knowledge the Company does not own or
control, directly or indirectly any corporation, association, or other
entity other than the subsidiaries listed in Exhibit 21.1 to the Annual
Report on Form 10-K for the Company's fiscal year ended June 30, 1997
or as disclosed in the Prospectus.
(4) Except as disclosed in the Prospectus (and except for
subsequent issuances of options, capital stock, or other rights under
agreements, employee benefit plans, or other arrangements referred to
in the Prospectus), there are, to such counsel's knowledge, no
outstanding (A) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of
the Company or any subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any of its subsidiaries
any such capital stock or any such convertible or exchangeable
securities or obligations or (C) obligations of the Company or any of
its subsidiaries to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(5) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with respect
to any securities of the Company owned or to be owned by such person
or, requiring the Company to include such securities in the securities
registered pursuant to the Registration Statement (or any such right
has been effectively waived) or requiring the registration of any
securities pursuant to any other registration statement filed by the
Company under the Act.
(6) To such counsel's knowledge, except as disclosed in the
Registration Statement or the Prospectus, the Company is not, nor with
the giving of notice or passage of time or both, would be, in material
violation of its articles of incorporation or bylaws, in each case as
amended to date, or, in default in any material respect under any
material indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument known to such counsel to which the
Company is a party or to which any of their respective properties or
assets is subject.
(7) The sale of the Shares being sold at the Time of Delivery
and the performance of this Agreement and the consummation of the
transactions herein contemplated will not in any respect material to
the condition (financial or otherwise), business, or results of
operation of the Company and its subsidiaries, taken as a whole,
conflict with or violate any provision
17-
18
of the articles of incorporation or bylaws of the Company or any of its
subsidiaries, in each case as amended to date, or to such counsel's
knowledge, any existing law, statute, rule or regulation, or in any
material respect, conflict with, or (with or without the giving of
notice or the passage of time or both) result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or to which any of their respective
properties or assets is subject, or, conflict with or violate any
order, judgment or decree known to such counsel, of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties or assets.
(8) To such counsel's knowledge, no consent, approval,
authorization, order or declaration of or from, or registration,
qualification or filing with, any court or governmental agency or body
is required for the sale of the Shares or the consummation of the
transactions contemplated by this Agreement, except such as have been
or will have been obtained and are or will be in effect, and except the
registration of the Shares under the Act, of Common Stock under the
Exchange Act and such as may be required by the NASD or under state
securities or blue sky laws in connection with the offer, sale and
distribution of the Shares by the Underwriter.
(9) To such counsel's knowledge and other than as disclosed in
or contemplated by the Prospectus, there is no litigation, arbitration,
claim, proceeding (formal or informal) or investigation pending or
threatened, in which the Company or any of its subsidiaries is a party
or of which any of their respective properties or assets is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole; and, to
such counsel's knowledge, neither the Company nor any of its
subsidiaries is in violation of, or in default with respect to, any
law, statute, rule, regulation, order, judgment or decree, except as
described in the Prospectus or such as do not and will not individually
or in the aggregate have a material adverse effect on the financial
position, results of operations or business of the Company and its
subsidiaries taken as a whole.
(10) To counsel's knowledge, the statements incorporated by
reference in the Prospectus to Item 1 - Business of the Company, Form
10-K for the year ended June 30, 1997 have been reviewed by such
counsel, and insofar as they refer to statements of law, descriptions
of statutes, licenses, rules or regulations, or legal conclusions, are
correct in all material respects.
(11) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Bank and, assuming due
execution by the Underwriter, constitutes the valid and binding
agreement of each of the Company and the Bank.
18-
19
(12) To such counsel's knowledge, the Company has received all
material Permits, of governmental or regulatory authorities (including,
without limitation, state and/or other insurance regulatory
authorities) as may be required of them to own their properties and to
conduct their businesses in the manner described in the Prospectus,
subject to such qualification as may be set forth in the Prospectus; to
such counsel's knowledge, the Company and its subsidiaries are
operating in substantial compliance with, and have performed all of
their material obligations with respect to, such Permits required under
applicable laws in connection with the business and operations of the
Company, and no event has occurred which allows, or after notice or
lapse of time or both would allow, revocation or termination thereof or
result in any other material impairment of the rights of the holder of
any such Permits, subject in each case to such qualifications as may be
set forth in the Prospectus; and other than as described in the
Prospectus, to counsel's knowledge no Permit contains any restrictions
that materially affect the ability of the Company to conduct its
businesses.
(13) The Registration Statement and the Prospectus and each
amendment or supplement thereto (other than the financial statements,
the notes and schedules thereto and other financial data included
therein, to which such counsel need express no opinion), as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements for registration statements on
Form S-3 under the Act. To counsel's knowledge, the descriptions in the
Registration Statement and the Prospectus of contracts and other
documents are accurate and fairly present the information required to
be shown; and such counsel do not know of any contracts or documents of
a character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required.
Such counsel shall also state that they have participated in
the preparation of the Registration Statement and the Prospectus and in
conferences with officers and other representatives of the Company and
the Selling Shareholder, representatives of the independent public
accountants for the Company, and representatives of and counsel to the
Underwriter at which the contents of the Registration Statement, the
Prospectus and related matters were discussed and, although such
counsel has not passed upon or assumed any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, and although such counsel has
not undertaken to verify independently the accuracy or completeness of
the statements in the Registration Statement or the Prospectus, nothing
has come to such counsel's attention to lead them to believe that the
Registration Statement, or any further amendment thereto made prior to
the Time of Delivery, on its effective date and as of the Time of
Delivery, contained or contains any untrue statement of a material fact
or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, not misleading, or
that the Prospectus, or any amendment or supplement thereto made prior
to the Time of Delivery, as of its issue date and as of the Time of
Delivery, contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not
19-
20
misleading (provided that such counsel need express no belief regarding
the financial statements, the notes and schedules thereto and other
financial data contained in the Registration Statement, any amendment
thereto, or the Prospectus, or any amendment or supplement thereto).
(14) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Shareholder.
(15) The execution and delivery by the Selling Shareholder of,
and the performance by the Selling Shareholder of its obligations
under, this Agreement and the Power of Attorney will not conflict or
violate any provision of the articles of incorporation or bylaws or
other organizational documents of the Selling Shareholder or, to
counsel's knowledge, any existing law, statute, rule or regulation, or
in any material respect, conflict with, or (with or without the giving
of notice or the passage of time or both) result in a material breach
or material violation of any of the terms or provisions of, or
constitute a material default under, any material indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
known to such counsel to which the Selling Shareholder is a party or,
conflict with or violate any judgment, order or decree known to such
counsel, of any governmental body, agency or court having jurisdiction
over the Selling Shareholder, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by the Selling Shareholder of its
obligations under this Agreement or the Custody Agreement or Power of
Attorney except such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale of the
Shares.
(16) The Selling Shareholder has valid title to the Shares and
the legal right and power, and all authorization and approval required
by law, to enter into this Agreement and the Custody Agreement and
Power of Attorney and to sell, transfer and deliver the Shares.
(17) The Power of Attorney has been duly authorized, executed
and delivered by the Selling Shareholder and is a valid and binding
agreement of the Selling Shareholder.
(18) Upon delivery of the certificates for the Shares properly
indorsed to the Underwriter and payment of the purchase price therefor
pursuant to this Agreement, assuming the Underwriter has no notice of
adverse claim and is acting in good faith, title to such Shares will be
passed to the Underwriter, free and clear of all liens, security
interests, pledges, charges, equities, and other encumbrances, other
than as created by or through the Underwriter.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deem proper, on
certificates of officers of the Company, public officials and the
Selling Shareholder and on letters from officials of the NASD. In
rendering such opinion, counsel may state that they are passing only on
matters of Florida state law and United States law, and may either (A)
rely upon an opinion or opinions, each dated as of the
20-
21
Time of Delivery of other counsel retained by them or the Company as to
the laws of any jurisdiction other than the United States or the State
of Florida, provided that such reliance is expressly authorized by each
opinion so relied upon, and a copy of each such opinion is delivered to
the Underwriter, and counsel shall state in their opinion that both
they and the Underwriter are justified in relying thereon, or (B)
assume that the laws of the State of Maine or the State of New York are
identical to the laws of the State of Florida in all respects material
to the opinion being rendered by counsel to the Company, provided that
such assumption is expressly disclosed in the opinion.
(d) Xxxxx Xxxxxx & Xxxxxx, LLP, counsel for the Underwriter, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to the Registration Statement, the Prospectus, and other related matters
as you may reasonably request, and the Company and the Selling Shareholder shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. Such opinion or opinions may be
rendered in reliance upon the opinion of other counsel and/or assume that the
laws of the States of Maine and New York are identical to the laws of the State
of Connecticut in all respects material to their opinion.
(e) The Underwriter shall have received, on each of the date hereof and
the Closing Date, as the case may be, in form and substance satisfactory to the
Underwriter, from Xxxxx, Xxxxxx & Xxxxx, Limited Liability Company, independent
public accountants, a letter or letters, as the case may be, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriter with respect to the financial statements and
certain financial information contained in the Registration Statement and
Prospectus; provided that the letter or letters, as the case may be, delivered
on the Closing Date shall use a "cut-off date" not earlier than the date hereof.
(f) Since the date of the latest audited financial statements included
in the Prospectus, neither the Company nor any of the subsidiaries shall have
sustained any change, or any development involving a prospective material change
(including, without limitation, a change in management or control of the
Company), in or materially affecting the position (financial or otherwise),
results of operations, net worth or business prospects of the Company and its
subsidiaries, otherwise than as disclosed in or contemplated by the Prospectus,
the effect of which, in either such case, in your sole judgment makes it
impracticable or inadvisable to proceed with the purchase, sale and delivery of
the Shares being delivered at such Time of Delivery as contemplated by the
Registration Statement, as amended as of the date hereof.
(g) Subsequent to the date hereof, there shall not have occurred any of
the following: (i) any suspension or limitation in trading in securities
generally on the American Stock Exchange or any setting of minimum prices for
trading on such exchange, or in the Common Stock of the Company by the
Commission or the American Stock Exchange; (ii) a moratorium on commercial
banking activities in New York, Maine or Connecticut declared by either federal
or state authorities; or (iii) any outbreak or escalation of hostilities
involving the United States, declaration by the United States of a national
emergency or war or any other national or international calamity or emergency if
the
21-
22
effect of any such event specified in this clause (iii) in your sole judgment
makes it impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Shares being delivered at the Time of Delivery as contemplated
by the Registration Statement, as amended as of the date hereof.
(h) Each of the Company and the Selling Shareholder shall have
furnished to you at the Time of Delivery certificates of the chief executive and
chief financial officers of the Company and the Selling Shareholder satisfactory
to you, as to the accuracy of the respective representations and warranties of
the Company and the Selling Shareholder herein at and as of the Time of Delivery
with the same effect as if made at the Time of Delivery, as to the performance
by each of the Company and the Selling Shareholder of all of its respective
obligations hereunder to be performed at or prior to the Time of Delivery, and
as to such other matters as you may reasonably request, and each of the Company
and the Selling Shareholder shall have furnished or caused to be furnished
certificates of such officers as to such matters as you may reasonably request.
(i) The representations and warranties of each of the Company, the Bank
and the Selling Shareholder in this Agreement and in the certificates delivered
by the Company and the Selling Shareholder pursuant to this Agreement shall be
true and correct in all material respects when made and on and as of the Time of
Delivery as if made at such time, and each of the Company, the Bank and the
Selling Shareholder shall have performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be performed or
satisfied by each of the Company, the Bank and the Selling Shareholder at or
before the Time of Delivery.
(j) The Common Stock shall continue to be listed on the American Stock
Exchange.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Company and the Bank, jointly and severally, agrees to
indemnify and hold harmless the Underwriter against any losses, claims, damages
or liabilities, joint or several, to which the Underwriter 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 or the Bank
in Sections 1 or 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 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 Shares under the securities or blue sky
laws thereof or filed with the Commission or any securities association or
securities exchange (each an "Application"); or (iii) the omission of or alleged
omission to state in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application of a material fact required to be stated therein or necessary
to make the statements therein not misleading; and will reimburse the
Underwriter for any legal or other expenses reasonably incurred by the
Underwriter in connection with investigating, defending against or appearing as
a third-party witness in connection with any such loss, claim,
22-
23
damage, liability or action; provided, however, that neither the Company nor the
Bank shall be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in the
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 the
Underwriter or the Selling Shareholder expressly for use therein (which
information is solely as set forth in Section 2(c) hereof). The foregoing
provisions of this paragraph applicable to the Company and the Bank shall be
equally applicable to the Selling Shareholder, provided that it shall be liable
only with respect to statements made by or relating to it and only to the extent
of the net proceeds received by Selling Shareholder for the sale of the Shares.
None of the Company, the Bank or the Selling Shareholder will without the prior
written consent of the Underwriter, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
(or related cause of action or portion thereof) in respect of which
indemnification may be sought hereunder (whether or not the Underwriter is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of the Underwriter from
all liability arising out of such claim, action, suit or proceeding (or related
cause of action or portion thereof).
(b) The Underwriter agrees to indemnify and hold harmless the Company,
the Bank and the Selling Shareholder against any losses, claims, damages or
liabilities to which the Company, the Bank and the Selling Shareholder 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 any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, 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, the Bank or the
Selling Shareholder by the Underwriter expressly for use therein (which
information is solely as set forth in Section 2(c) hereof); and will reimburse
the Company, the Bank and the Selling Shareholder for any legal or other
expenses reasonably incurred by the Company, the Bank and the Selling
Shareholder in connection with investigating or defending any such loss, claim,
damage, liability or action.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under such subsection (a) or (b). In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel
23-
24
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying 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 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
assume the defense of such action on behalf of such indemnified party and such
indemnified party shall have the right to select separate counsel to defend such
action on behalf of such indemnified party. After such 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 10 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. Nothing in this
Section 10(c) shall preclude an indemnified party from participating at its own
expense in the defense of any such action so assumed by the indemnifying party.
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party 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 the
relative benefits received by the Company and the Selling Shareholder on the one
hand and the Underwriter on the other hand from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholder on the one hand
and the Underwriter on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriter on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Shareholder
bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault 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 Selling Shareholder on the one hand or the
Underwriter on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Selling Shareholder and the Underwriter agree that
it would not be just and equitable if contributions pursuant to this subsection
(d) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other
24-
25
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which the Underwriter 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company and the Selling Shareholder under
this Section 10 shall be in addition to any liability which the Company or the
Selling Shareholder may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and employee of the Underwriter and to
each person, if any, who controls the Underwriter within the meaning of the Act
or the Exchange Act; and the obligations of the Underwriter under this Section
10 shall be in addition to any liability which the Underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer,
trustee and director of the Company and to each person, if any, who controls the
Company or the Selling Shareholder within the meaning of the Act or the Exchange
Act.
11. TERMINATION.
(a) This Agreement may be terminated in the sole discretion of the
Underwriter by notice to the Company given prior to the Time of Delivery in the
event that (i) any condition to the obligations of the Underwriter set forth in
Section 9 hereof has not been satisfied, or (ii) the Selling Shareholder shall
have failed, refused or been unable to deliver the Shares or the Company or the
Selling Shareholder shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on their respective parts to be performed
or satisfied hereunder at or prior to the Time of Delivery, in either case other
than by reason of a default by the Underwriter. If this Agreement is terminated
pursuant to this Section 11(a), the Company and the Selling Shareholder will
reimburse the Underwriter upon demand for all out-of-pocket expenses (including
counsel fees and disbursements) that shall have been incurred by it in
connection with the proposed purchase and sale of the Shares.
12. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its officers, the Bank, the
Selling Shareholder and the Underwriter, as 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 any investigation (or any statement as
to the results thereof) made by or on behalf of the Underwriter or any
controlling person referred to in Section 10(e) or the Company, or any officer,
trustee or director or controlling person of the Company referred to in Section
10(e), and shall survive delivery of and payment for the Shares. The respective
agreements, covenants, indemnities and other statements set forth in Sections 8
and 10 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
25-
26
13. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriter, shall be mailed, delivered or telegraphed and confirmed
in writing to you in care of Advest, Inc., Xxx Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000-0000, Attention: Xxxxxx X. Xxxxxx (with a copy to
Xxxxx Xxxxxx & Xxxxxx, LLP, CityPlace 00xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000-0000, Attention: Xxxxxxx X. Xxxxxx, III, Esq.; if to the Company shall be
sufficient in all respects if mailed, delivered or telegraphed and confirmed in
writing to Northeast Bancorp, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention:
Xxxxx X. Xxxxxxxxx, President (with a copy to Carlton, Fields, Xxxx, Xxxxxxxx,
Xxxxx & Xxxxxx, P.A., One Harbour Place, 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx,
Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Esq.; and if to the Selling
Shareholder, shall be sufficient in all respects if mailed, delivered or
telegraphed and confirmed in writing to Square Lake Holding Corporation, 000 Xx.
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxxxxxxx, Xxxxxx, X0X 0X0, Attention:
Xxxxxx X. Xxxxxx (with a copy to Carlton, Fields, Xxxx, Xxxxxxxx, Xxxxx &
Xxxxxx, P.A., One Harbour Place, 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx,
Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Esq.)
14. BINDING EFFECT. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriter, the Company, the Bank and the Selling
Shareholder and to the extent provided in Sections 10 and 12 hereof, the
officers, trustees, directors and employees and controlling persons referred to
therein and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Shares from the Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to any
provisions regarding conflicts of laws.
16. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
17. EFFECTIVE DATE. This Agreement shall become effective immediately
on the date hereof.
26-
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and upon
the acceptance hereof by the Underwriter, this letter will constitute a binding
agreement among the Underwriter, the Company, the Bank and the Selling
Shareholder.
Very truly yours,
NORTHEAST BANCORP
By:_________________________
Name:
Title:
NORTHEAST BANK, F.S.B.
By:_________________________
Name:
Title:
00-
00
XXXXXX XXXX XXXXXXX CORPORATION
By:_________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above at
Hartford, Connecticut.
ADVEST, INC.
By:_________________________
Name:
Title:
28-
29
EXHIBIT A
SUBSIDIARIES
1. Northeast Bank, F.S.B.
29-
