_____________Shares
Sun Bancorp, Inc.
Common Stock
par value $1.00 per share
Underwriting Agreement
----------------------
______________, 2003
Sandler X'Xxxxx & Partners, L.P.,
As representative of the several Underwriters
named in Schedule I hereto,
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Sun Bancorp, Inc., a New Jersey corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
___________shares (the "Firm Shares") and, at the election of the Underwriters,
up to __________ additional shares (the "Optional Shares") of the common stock,
par value $1.00 per share ("Stock") of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof being collectively called the "Shares").
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"). A
registration statement on Form S-3 (File No. 333-_____) (the
"Initial Registration Statement") in respect of the Shares
has been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and
any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto
but including all documents incorporated by reference in the
prospectus contained therein, delivered to you for each of
the other Underwriters, have been declared effective by the
Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Act, which became effective upon
filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference
therein has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter
called a "Preliminary Prospectus"); the various parts of the
Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits
thereto and including the information contained in the form
of final prospectus filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be
part of the Initial Registration Statement at the time it
was declared effective, each as amended at the time such
part of the Initial Registration Statement became effective
or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the
"Prospectus";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this
representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by an Underwriter through Sandler X'Xxxxx &
Partners, L.P. expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do
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not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto, and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this
representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by an Underwriter through Sandler X'Xxxxx &
Partners, L.P. expressly for use therein;
(iv) The documents which are incorporated by reference in the
Registration Statement or any Preliminary Prospectus or the
Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the
Commission, as the case may be (or, if an amendment with
respect to any such documents was filed or became effective,
when such amendment was filed or became effective), complied
in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make to
the statements therein not misleading;
(v) The consolidated financial statements, audited and unaudited
(including the notes thereto), included or incorporated by
reference in the Registration Statement present fairly the
consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated
results of operations and cash flows of the Company and its
subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated
therein. The financial statement schedules, if any, included
in the Registration Statement present fairly the information
required to be stated therein. The selected financial, pro
forma and statistical data included in the Prospectus are
accurate in all material respects and present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited and unaudited
consolidated financial statements included or incorporated
by reference in the Registration Statement.
(vi) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the
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Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any
development that may cause a prospective material adverse
change, in or affecting the general affairs, management,
financial position, business prospects, stockholders' equity
or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in
the Prospectus;
(vii) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and
marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or
such as do not 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 and its subsidiaries;
and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the
Company and its subsidiaries;
(viii) The Company is a registered bank holding company under the
Bank Holding Company Act of 1956, as amended ("BHCA") with
respect to Sun National Bank (the "Bank") and has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of New Jersey,
with power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business 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, or is subject to any
liability or disability by reason of the failure to be so
qualified in any jurisdiction;
(ix) Each subsidiary of the Company either has been duly
incorporated and is validly existing as a corporation or a
statutory business trust or has been duly chartered and is
validly existing as a national bank, in each case in good
standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other)
to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business 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, or is subject to any
liability or disability by reason of the failure to be so
qualified in any jurisdiction, except where the failure to
be so qualified would not have a Material Adverse Effect;
the activities of the subsidiaries of the Bank are permitted
to subsidiaries of a national bank
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and the deposit accounts of the Bank are insured up to the
applicable limits by the Federal Deposit Insurance
Corporation (the "FDIC");
(x) The Company has an authorized capitalization as set forth in
the Prospectus under the heading "Capitalization", and all
of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid
and nonassessable and conform to the description of the
Stock contained in the Prospectus; all of the issued and
outstanding capital stock of each subsidiary of the Company
has been duly authorized and validly issued and is fully
paid and nonassessable and is owned, directly or through
other subsidiaries of the Company, by the Company free and
clear of any pledge, lien, encumbrance, claim or equity;
(xi) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued
and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus and the
issuance of such shares will not be subject to any
preemptive or similar rights;
(xii) Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or
options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with
respect to the sale or issuance of, any shares of capital
stock of or other equity interest in the Company; and (B)
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 or otherwise register any securities the Company
owned or to be owned by such person;
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed by the
Underwriters, will constitute the valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles. The issue and sale of the Shares by the Company
and the compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Amended
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and Restated Certificate of Incorporation or Amended and
Restated Bylaws of the Company or any statute or any order,
rule or regulation of any federal, state, local or foreign
court or governmental agency (each a "Governmental Entity")
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or
qualification of or with any such court or governmental
agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the
registration under the Act of the Shares and except as may
be required under the rules and regulations of the National
Association of Securities Dealers, Inc. ("NASD") and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(xiv) Neither the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or charter (as
applicable) or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it or any of
its properties may be bound;
(xv) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the capital stock of
the Company, under the captions and under the caption
"Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein,
are accurate and complete;
(xvi) Except as disclosed in the Prospectus, the Company and its
subsidiaries conducting their respective businesses in
compliance in all material respects with all federal, state,
local and foreign statutes, laws, rules, regulations,
decisions, directives and orders applicable to them
(including, without limitation, all regulations and orders
of, or agreements with, the Office of the Comptroller of the
Currency (the "OCC") and the FDIC, the Equal Credit
Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act, all
other applicable fair lending laws or other laws relating to
discrimination and the Bank Secrecy Act and Title III of the
USA Patriot Act), and neither the Company nor any of its
subsidiaries has received any communication from any
Governmental Entity asserting that the Company or any of its
subsidiaries is not in compliance with any statute, law,
rule, regulation, decision, directive or order;
(xvii) Except as disclosed in the Prospectus, there are no legal or
governmental actions or suits, investigations proceedings
before or by any Government Entity, now pending or, to the
knowledge of the Company, threatened or
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contemplated by Government Entities or threatened by others,
to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its
subsidiaries is the subject (A) that is required to be
disclosed in the Registration Statement by the Act or by the
rules and regulations of the Commission thereunder and not
disclosed therein or (B) 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
business, properties, assets, current or future consolidated
financial position, business prospects, stockholders' equity
or results of operations of the Company and its subsidiaries
taken as a whole or on the ability of the Company to
consummate the transactions contemplated herein (a "Material
Adverse Effect"); all pending legal or governmental
proceedings to which the Company or any of its subsidiaries
is a party or of which any of their property is the subject,
either individually or in the aggregate, which are not
described in the Registration Statement, including ordinary
routine litigation incidental to their respective
businesses, would not have a Material Adverse Effect; and
there are no contracts or documents of the Company or any of
its subsidiaries which would be required to be described in
the Registration Statement or to be filed as exhibits
thereto by the Act or by the rules and regulations of the
Commission thereunder which have not been so described and
filed;
(xviii) Each of the Company and its subsidiaries possess all
permits, licenses, approvals, consents and other
authorizations of (collectively, "Governmental Licenses"),
and has made all filings, applications and registrations
with all Governmental Entities to permit the Company or such
subsidiary to conduct the business now operated by the
Company or its subsidiaries; 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, individually or in the aggregate,
have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force
and effect would not, individually or in the aggregate, have
a Material Adverse Effect; 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 result in a Material Adverse Effect;
(xix) Neither the Company nor any of its subsidiaries is a party
to or subject to any order, decree, agreement, memorandum or
understanding or similar agreement with, or a commitment
letter, supervisory letter or similar submission to, any
Governmental Entity charged with the supervision or
regulation of depository institutions or engaged in the
insurance of deposits (including the FDIC) or the
supervision or regulation of it or any of its subsidiaries
and neither the Company nor any of its subsidiaries has
7
been advised by any such Governmental Entity that such
Governmental Entity is contemplating issuing or requesting
(or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum or
understanding, commitment letter, supervisory letter or
similar submission;
(xx) Each of the Company and its subsidiaries is in compliance in
all material respects with all applicable federal, state and
local environmental laws and regulations, including, without
limitation, those applicable to emissions to the
environment, waste management, and waste disposal
(collectively, the "Environmental Laws"), except where such
noncompliance would not be reasonably likely to have a
Material Adverse Effect, or except as disclosed in the
Prospectus, and to the knowledge of the Company, there are
no circumstances that would prevent, interfere with or
materially increase the cost of such compliance in the
future;
(xxi) Except as disclosed in the Prospectus, there is no claim
under any Environmental Law, including common law, pending
or, to the best knowledge of the Company, threatened against
the Company or its subsidiaries (an "Environmental Claim"),
which would be reasonably likely to have a Material Adverse
Effect, and, to the knowledge of the Company, under
applicable law, there are no past or present actions,
activities, circumstances, events or incidents, including,
without limitation, releases of any material into the
environment, that are reasonably likely to form the basis of
any Environmental Claim against the Company or its
subsidiaries which would be reasonably likely to have a
Material Adverse Effect;
(xxii) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with,
and have not received any notice of any claim of conflict
with, any such rights of others;
(xxiii) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
customers or suppliers of the Company on the other hand,
which is required to be described in the Registration
Statement by the Act or by the rules and regulations of the
Commission thereunder which has not been so described;
(xxiv) The statistical and market related data contained in the
Prospectus and Registration Statement are based on or
derived from sources which the Company believes are reliable
and accurate;
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(xxv) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company"
or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(xxvi) The Company and its subsidiaries, taken as a whole, are
insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are
prudent and customary in the business in which they are
engaged; and neither the Company nor any of its subsidiaries
has any reason to believe that it will not be able to renew
its existing insurance coverage from similar insurers as may
be necessary to continue its business at a cost that would
not have a Material Adverse Effect; and
(xxvii) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder and
such accountants are not in violation of the auditor
independence requirements of the Xxxxxxxx-Xxxxx Act of 2003
(the "Xxxxxxxx-Xxxxx Act").
(xxviii) The Company is in compliance with the applicable provisions
of the Xxxxxxxx-Xxxxx Act and will comply with those
provisions of the Xxxxxxxx-Xxxxx Act that will become
effective in the future upon their effectiveness.
(xxix) The Company has established and maintains disclosure
controls and procedures as required by Rule 13a-15 under the
Exchange Act. Within ninety (90) days preceding the date of
each applicable SEC Report, the Company has conducted an
evaluation under the supervision and with the participation
of its management, including the Company's Chief Executive
Officer and Chief Financial Officer, of the effectiveness of
the design and operation of its disclosure controls and
procedures, and has concluded that its disclosure controls
and procedures are effective to ensure that information
required to be disclosed in the SEC Reports is recorded,
processed, summarized and reported, within the periods
specified in, and in accordance with the requirements of,
the SEC's rules, regulations and forms. Based on such
evaluations, (i) there were no significant deficiencies in
the design or operation of internal controls which could
adversely affect the Company's ability to record, process,
summarize and report financial data or material weaknesses
in internal controls and (ii) there was no fraud, whether or
not material, that involved management or other employees of
the Company or any of its subsidiaries who have a
significant role in the Company's internal controls.
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(xxx) No labor problem with the employees of the Company or any of
its subsidiaries exists or, to the best knowledge of the
Company, is imminent that could materially adversely affect
the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, and the Company
is not aware of any existing or imminent labor disturbance
by the employees of any of its subsidiaries' principal
suppliers, contractors or customers that could reasonably be
expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xxxi) The Company and each subsidiary of the Company have filed
all federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments
of all taxes shown thereon to be due and payable in respect
of such returns, and no material deficiency has been
asserted with respect thereto by any taxing authority.
(b) The Bank represents and warrants to, and agrees with, each
of the Underwriters that:
(i) The Bank has been duly chartered and is validly existing as
a national bank in good standing under the laws of the
United States, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business 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, or is subject
to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(ii) Neither the Bank nor any of its subsidiaries is in violation
of its stock charter, bylaws or other charter documents or
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to
which the Bank or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
property of the Bank or any of its subsidiaries is subject;
and
(iii) This Agreement has been duly authorized, executed and
delivered by the Bank and, when duly executed by the
Underwriters, will constitute the valid and binding
agreement of the Bank enforceable against the Bank in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles. The execution, delivery and performance of this
10
Agreement by the Bank and the compliance by the Bank with
all of the provisions of this Agreement and the consummation
of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Bank or any of its
subsidiaries is a party or by which the Bank or any of its
subsidiaries is bound or to which any of the property or
assets of the Bank or any of its subsidiaries is subject,
nor will such action result in any violation of the
provisions of the charter or bylaws of the Bank or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Bank or any of its subsidiaries or any of their properties.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $_____, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to _______ Optional Shares, at the purchase price per share
set forth in clause (a) of the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Sandler X'Xxxxx & Partners, L.P. may request upon at least forty-eight
hours' prior notice to the Company shall be delivered by or on behalf of the
Company to Sandler X'Xxxxx & Partners, L.P., through the
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facilities of the Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same day) funds to the account
specified by the Company to Sandler X'Xxxxx & Partners, L.P. at least 48 hours
in advance. The Company will cause the certificates representing the Shares to
be made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 10:00 a.m.,
Eastern time, on ________, 2003 or such other time and date as Sandler X'Xxxxx &
Partners, L.P. and the Company may agree upon in writing, and, with respect to
the Optional Shares, 10:00 a.m., New York time, on the date specified by Sandler
X'Xxxxx & Partners, L.P. in the written notice given by Sandler X'Xxxxx &
Partners, L.P. of the Underwriters' election to purchase such Optional Shares,
or such other time and date as Sandler X'Xxxxx & Partners, L.P. and the Company
may agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "First Time of Delivery", such time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of Xxxxxxx Xxxxxxxx & Wood LLP, 0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxx 000,
Xxxxxxxxxx, XX 00000 (the "Closing Location"), and the Shares will be delivered
at the Designated Office, all at such Time of Delivery. A meeting will be held
at the Closing Location at 4:00 p.m., Eastern Time, on the New York Business Day
next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and,
12
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions 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;
(c) Prior to 10:00 a.m., Eastern Time, on the New York
Business Day next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any event shall 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 when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as you
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to, and not to allow its directors, and executive officers to, offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock option
plans existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement), without
your prior written consent;
13
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) If the Company elects to rely on Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Eastern time on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act;
(j) To use its best efforts to list for quotation the Shares
on the Nasdaq National Market System ("Nasdaq");
(k) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 of the Act; and
(l) During the period beginning on the date hereof and ending
on the later of the fifth anniversary of the First Time of Delivery or the date
on which the Underwriters receive full payment in satisfaction of any claim for
indemnification or contribution to which they may be entitled pursuant to
Section 9 of this Agreement, neither the Company nor the Bank shall, without the
prior written consent of Sandler X'Xxxxx & Partners, L.P., take or permit to be
taken any action that could result in the Bank's common stock becoming subject
to any security interest, mortgage, pledge, lien or encumbrance; provided,
however, that this covenant shall by null and void if the FRB, the OCC, the
FDIC, or any other federal agency having jurisdiction over the Bank, by
regulation, policy statement or interpretive release or by written order or
written advice addressed to the Bank and specifically addressing the provisions
of Section 8 hereof, permits indemnification of the Underwriters by the Bank as
contemplated by such provisions.
14
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following, whether or not the
transactions contemplated herein are completed: (i) the reasonable out-of-pocket
expenses incurred by the Underwriters in connection with the transactions
contemplated hereby, including, without limitation, disbursements, fees and
expenses of Underwriters' counsel and marketing, syndication and travel
expenses; (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, printing and filing of
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (iii) the cost of printing or producing
any agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares; (iv)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey; (v) all fees and
expenses in connection with listing the Shares on the Nasdaq National Market;
(vi) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vii) the cost of preparing stock certificates; (viii) the cost and
charges of any transfer agent or registrar; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern
Time, on the date of this Agreement; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxxxx Xxxxxxxx & Wood LLP, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to such matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxxx, Spidi & Xxxxx, P.C., counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion is
attached as Annex I hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
15
(i) The Company is a registered bank holding company under the
BHCA; has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State
of New Jersey, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus under the heading "Capitalization", and all
of the issued shares of capital stock of the Company
(including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued
and are fully paid and nonassessable; and the Shares conform
to the description of the Stock contained in the Prospectus
and are not subject to any preemptive or similar rights;
(iii) Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or
options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with
respect to the sale or issuance of, any shares of capital
stock of or other equity interest in the Company; and (B)
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 or otherwise register any securities of the Company
owned or to be owned by such person;
(iv) The Company has been duly qualified as a foreign corporation
for the transaction of business 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, or is subject to any liability
or disability by reason of failure to be so qualified in any
jurisdiction, except where such failure to be so qualified
would not have a Material Adverse Effect;
(v) Each subsidiary of the Company either has been duly
incorporated and is validly existing as a corporation or a
statutory business trust or has been duly chartered and is
validly existing as a national bank, in each case in good
standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other)
to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business 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, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction; the activities of the
subsidiaries of the Bank are activities permitted to
subsidiaries of a national bank under applicable law and the
rules and regulations of the OCC and the deposit accounts of
the Bank are insured up to the applicable
16
limits by the FDIC; all of the issued and outstanding
capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and
nonassessable and is owned, directly or through other
subsidiaries of the Company, by the Company free and clear
of any pledge, lien, encumbrance, claim or equity;
(vi) To the best of such counsel's knowledge, the Company and its
subsidiaries have good and marketable title to all real
property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described
in the Prospectus or such as do not 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
and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(vii) Except as disclosed in the Prospectus, the Company and its
subsidiaries are conducting their respective businesses in
compliance in all material respects with all laws, rules,
regulations, decisions, directives and orders (including,
without limitation, all regulations and orders of, or
agreements with, the FDIC, the FRB, the OCC, the Equal
Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act and all
other applicable fair lending laws or other laws relating to
discrimination and the Bank Secrecy Act and Title III of the
USA Patriot Act) and neither the Company nor any of its
subsidiaries has received any communication from any
Governmental Entity asserting that the Company or any of its
subsidiaries is not in compliance with any statute, law,
rule, regulation, decision, directive or order; there is no
action, suit, investigation or proceeding before or by any
government, governmental instrumentality or court, domestic
or foreign, now pending or, to the knowledge of such
counsel, threatened or contemplated against or affecting the
Company or any of its subsidiaries (A) that is required to
be disclosed in the Registration Statement and not disclosed
therein, (B) that could result, individually or in the
aggregate, in any Material Adverse Effect, (C) that could
materially and adversely affect the properties, assets or
leasehold interests of the Company and its subsidiaries,
considered as one enterprise, or (D) that could adversely
affect the consummation of the transactions contemplated in
this Agreement; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries
is a party or of which any of their property is the subject,
which are not described in the Registration Statement,
including ordinary routine litigation incidental to their
respective businesses, either individually or in the
aggregate, would not have a Material Adverse Effect;
17
(viii) This Agreement has been duly authorized, executed and
delivered by the Company and the Bank;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed by the
Underwriters, will constitute the valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles. The issue and sale of the Shares being delivered
at such Time of Delivery by the Company and the compliance
by the Company with all of the provisions of this Agreement
and the consummation of the transactions herein contemplated
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the
Restated Certificate of Incorporation or Bylaws of the
Company or any statute or any order, rule or regulation
known to such counsel of any court or Governmental Entity;
(x) No consent, approval, authorization, order, registration or
qualification of or with any court or Governmental Entity is
required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated
by this Agreement, except the registration under the Act of
the Shares, and except as may be required under the rules
and regulations of the NASD and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares
by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or charter (as
applicable) or bylaws or, to such counsel's knowledge, in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(xii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock and under the
caption "Underwriting", insofar as they purport to describe
the provisions of the laws and documents referred to
therein, are accurate and complete;
18
(xiii) To the best of such counsel's knowledge, each of the Company
and its subsidiaries possess all Governmental Licenses and
have made all filings, applications and registrations with
all Governmental Entities that are required in order to
permit the Company or such subsidiary to conduct its
business as presently conducted, except where the failure to
possess such Governmental License or to have made such
filing, application or registration would not, individually
or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental
Licenses to be in full force and effect, individually or in
the aggregate, would not have a Material Adverse Effect; 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,
individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material Adverse Effect;
(xiv) To the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is a party to or subject to any
order, decree, agreement, memorandum of understanding or
similar arrangement with, or a commitment letter,
supervisory letter or similar submission to, any
Governmental Entity charged with the supervision or
regulation of depository institutions or engaged in the
insurance of deposits (including the FDIC) or the
supervision or regulation of it or any of its subsidiaries
and neither the Company nor any of its subsidiaries has been
advised by any such Governmental Entity that such
Governmental Entity is contemplating issuing or requesting
(or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of
understanding, commitment letter, supervisory letter or
similar submission;
(xv) The Company is not, and after giving effect to the offering
and sale of the Shares, will not be, an "investment company"
or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act;
(xvi) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion),
when they were filed with the Commission, complied as to
form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any such
documents, when such documents were so filed, contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
19
(xvii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Act and the rules and regulations thereunder; and such
counsel does not know of any contracts or other agreements
of a character required to be incorporated by reference into
the Prospectus or required to be filed as an exhibit to the
Registration Statement or required to be described in the
Registration Statement or Prospectus which are not filed or
incorporated by reference or described as required;
In addition, although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to in the
opinion in subsection (xi) of this section 7(c), they have no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and they
do not know of any amendment to the Registration Statement required to be filed;
(d) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., Eastern Time, on the effective date
of any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, the Company's
Independent Auditor shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you,
with respect to the financial statements of the Company and certain financial
information contained in the Prospectus.
(e)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the
20
respective dates as of which information is given in the Prospectus there shall
not have been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representative so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on the Nasdaq; (ii) a
suspension or material limitation in trading in the Company's securities on the
Nasdaq; (iii) a general moratorium on commercial banking activities declared by
either Federal or New York or New Jersey authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
including without limitation, as a result of terrorist activities occurring
after the date hereof, if the effect of any such event specified in clause (iv)
or (v), in the judgment of Sandler X'Xxxxx & Partners, L.P. makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have
been duly listed for quotation on the Nasdaq;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each officer and director and the
stockholders listed on Schedule A hereto of the Company, substantially to the
effect set forth in Subsection 5(e) hereof in form and substance satisfactory to
you;
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement; and
(k) The Company shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of
21
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (e) of this Section and as to such
other matters as you may reasonably request.
8. (a) The Company and the Bank, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such 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 an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and the Bank shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Sandler X'Xxxxx
& Partners, L.P. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
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 an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
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 any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Sandler X'Xxxxx
& Partners, L.P. expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(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 it from any liability which it may have to
any indemnified party otherwise than under such subsection. 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
22
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party which consent shall not be unreasonably
withheld, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action 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.
(d) If the indemnification provided for in this Section 8 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 on the one hand and the Underwriters
on the other 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 on the one hand and the Underwriters on the other in
connection with the statements or omissions which 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 on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. 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 on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters 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 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 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), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares
23
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such 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. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company or the Bank may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act or who is an
affiliate or partner of any Underwriter; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Bank, as the case
may be, and to each other person, if any, who controls the Company or the Bank
within the meaning of the Act or who is an affiliate of the Company or the Bank,
as the case may be.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies you that it
has so arranged for the purchase of such Shares, you or the Company shall have
the right to postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-tenth of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of
24
a defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased exceeds one-tenth of the aggregate number of all the Shares to be
purchased at such Time of Delivery, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional Shares)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
as provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, 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 any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company shall then be under no
further liability to any Underwriter except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative at 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxxxx, Principal; and if to
the Company shall be delivered or sent by mail or facsimile to 000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, President and
Chief Executive Officer; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter,
25
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 any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. 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.
26
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a for of
Agreement among Underwriters, but without warranty on your part as to the
authority of the signer thereof.
Very truly yours,
SUN BANCORP, INC.
By: __________________________________________
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
SUN NATIONAL BANK
By: __________________________________________
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
Accepted as of the date hereof:
SANDLER X'XXXXX & PARTNERS, L.P.
As representative of the Underwriters
By: Sandler X'Xxxxx & Partners Corp.
the sole general partner
By: __________________________________________
Name:
Title:
27
SCHEDULE I
Number of Optional
Total Shares to be
Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ---------
Sandler X'Xxxxx & Partners, L.P.
Total
28
Annex I
Pursuant to Section 7(c) of the Underwriting Agreement, counsel for the
Company shall furnish an opinion to the Underwriter to the effect that:
(i) The Company is a registered bank holding company under the
BHCA; has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of New Jersey, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus under the heading "Capitalization", and all of the issued
shares of capital stock of the Company (including the Shares being delivered at
such Time of Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; and the Shares conform to the description of the
Stock contained in the Prospectus;
(iii) Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of capital
stock of or other equity interest in the Company; and (B) 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 or otherwise register any securities of the Company
owned or to be owned by such person;
(iv) The Company has been duly qualified as a foreign
corporation for the transaction of business 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, or is subject to any
liability or disability by reason of failure to be so qualified in any
jurisdiction, except where such failure to be so qualified would not have a
Material Adverse Effect;
(v) Each subsidiary of the Company either has been duly
incorporated and is validly existing as a corporation or a statutory business
trust or has been duly chartered and is validly existing as a national bank, in
each case in good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business 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,
or is subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; the activities of the subsidiaries of
the Bank are activities permitted to subsidiaries of a national bank under
applicable law and the rules and regulations of the OCC and the deposit accounts
of the Bank are insured up to the applicable limits by the FDIC; all of the
issued and outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and non-assessable and is
owned, directly or through other subsidiaries of the Company, by the Company
free and clear of any pledge, lien, encumbrance, claim or equity;
A-1
(vi) To the best of such counsel's knowledge, the Company and
its subsidiaries have good and marketable title to all real property owned by
them, in each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not 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 and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(vii) Except as disclosed in the Prospectus, the Company and
its subsidiaries are conducting their respective businesses in compliance in all
material respects with all laws, rules, regulations, decisions, directives and
orders (including, without limitation, all regulations and orders of, or
agreements with, the FDIC, the FRB, the OCC, the Equal Credit Opportunity Act,
the Fair Housing Act, the Community Reinvestment Act, the Home Mortgage
Disclosure Act and all other applicable fair lending laws or other laws relating
to discrimination and the Bank Secrecy Act and Title III of the USA Patriot Act)
and neither the Company nor any of its subsidiaries has received any
communication from any Governmental Entity asserting that the Company or any of
its subsidiaries is not in compliance with any statute, law, rule, regulation,
decision, directive or order; there is no action, suit, investigation or
proceeding before or by any government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge of such counsel,
threatened or contemplated against or affecting the Company or any of its
subsidiaries (A) that is required to be disclosed in the Registration Statement
and not disclosed therein, (B) that could result, individually or in the
aggregate, in any Material Adverse Effect, (C) that could materially and
adversely affect the properties, assets or leasehold interests of the Company
and its subsidiaries, considered as one enterprise, or (D) that could adversely
affect the consummation of the transactions contemplated in this Agreement; all
pending legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is the subject, which
are not described in the Registration Statement, including ordinary routine
litigation incidental to their respective businesses, either individually or in
the aggregate, would not have a Material Adverse Effect;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company and the Bank;
(ix) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company and the compliance by the Company with all of
the provisions of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the [Restated
Certificate of Incorporation or Bylaws] of the Company or any statute or any
order, rule or regulation known to such counsel of any court or Governmental
Entity;
A-2
(x) No consent, approval, authorization, order, registration
or qualification of or with any court or Governmental Entity is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration under the
Act of the Shares, and except as may be required under the rules and regulations
of the NASD and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or charter (as applicable) or
bylaws or, to such counsel's knowledge, in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(xii) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, under the captions___________________ and
under the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate and
complete;
(xiii) To the best of such counsel's knowledge, each of the
Company and its subsidiaries possess all Governmental Licenses and have made all
filings, applications and registrations with all Governmental Entities that are
required in order to permit the Company or such subsidiary to conduct its
business as presently conducted, except where the failure to possess such
Governmental License or to have made such filing, application or registration
would not, individually or in the aggregate, have a Material Adverse Effect; all
of the Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses to be in full force and
effect, individually or in the aggregate, would not have a Material Adverse
Effect; 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, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect;
(xiv) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is a party to or subject to any order,
decree, agreement, memorandum of understanding or similar arrangement with, or a
commitment letter, supervisory letter or similar submission to, any Governmental
Entity charged with the supervision or regulation of depository institutions or
engaged in the insurance of deposits (including the FDIC) or the supervision or
regulation of it or any of its subsidiaries and neither the Company nor any of
its subsidiaries has been advised by any such Governmental Entity that such
Governmental Entity is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any such order, decree, agreement,
memorandum of understanding, commitment letter, supervisory letter or similar
submission;
A-3
(xv) The Company is not, and after giving effect to the
offering and sale of the Shares, will not be, an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xvi) The documents incorporated by reference in the
Prospectus (other than the financial statements and related schedules therein,
as to which such counsel need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any such documents, when such documents
were so filed, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents were
so filed, not misleading;
(xvii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the rules and
regulations thereunder; and such counsel does not know of any contracts or other
agreements of a character required to be incorporated by reference into the
Prospectus or required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or Prospectus which
are not filed or incorporated by reference or described as required;
In addition, although such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to in the
opinion in subsection (xi), they have no reason to believe that, as of its
effective date, the Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or that, as of its date, the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do not know
of any amendment to the Registration Statement required to be filed.
A-4
