Exhibit 1.0
ARGO BANCORP, INC.
ARGO CAPITAL TRUST CO.
$15,000,000 of ____% Capital Securities
(Liquidation Amount $10 per Capital Security)
UNDERWRITING AGREEMENT
October __, 1998
XXXXXX XXXXXXX INCORPORATED
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Argo Bancorp, Inc., a Delaware corporation (the "Company"), proposes to
sell to the several underwriters named in Schedule I hereto (the
"Underwriters") through its wholly-owned financing subsidiary, Argo Capital
Trust Co., a Delaware statutory business trust (the "Trust", and hereinafter
together with the Company, the "Offerors"), an aggregate of $15,000,000 of
the Trust's ____% Capital Securities, with a liquidation amount of $10 per
capital security ("Capital Securities"), to be issued under the Trust
Agreement (as hereinafter defined), (the aforementioned 1,500,000 Capital
Securities to be sold to the Underwriters being referred to herein as the
"Firm Capital Securities"). The respective amounts of the Firm Capital
Securities to be so purchased by the Underwriters are set forth opposite
their names in Schedule I hereto. In addition, the Trust proposes to grant
the Underwriters an option to purchase therefrom all or any part of an
additional $2,250,000 of Capital Securities for the purpose of covering
over-allotments, if any (the aforementioned 225,000 Capital Securities which
may be sold to the Underwriters being referred to herein as the "Option
Capital Securities"). The Firm Capital Securities and all or any part of the
Option Capital Securities are hereinafter collectively referred to as the
"Designated Capital Securities."
1. Representations and Warranties of the Offerors. The Offerors,
jointly and severally, represent and warrant to, and agree with, each of the
Underwriters that:
a. The Company and the Trust have filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), a registration
statement on Form S-1 (Registration Nos. 333-59434 and
333-59435-01) including the related preliminary prospectus
relating to the Designated Capital Securities, the Guarantee (as
defined in Section 2(e) hereof) and $___ aggregate principal
amount of Junior Subordinated Debentures (as defined in Section
2(e) hereof), have filed such amendments thereto as may have been
required as of the date hereof, and will file such additional
amendments as may hereafter
be required. Copies of such registration statement and any
amendments, including any post-effective amendments, and all
forms of the related prospectuses contained therein and any
supplements thereto, have been delivered to the Underwriters.
Such registration statement, including the prospectus, Part
II, all financial schedules and exhibits thereto, and all
information deemed to be a part of such Registration Statement
pursuant to Rule 430A under the Securities Act, at the time
when it shall become effective, together with any registration
statement filed by the Company and the Trust pursuant to Rule
462(b) of the Securities Act, is herein referred to as the
"Registration Statement," and the prospectus included as part
of the Registration Statement on file with the Commission that
discloses all the information that was omitted from the
prospectus on the effective date pursuant to Rule 430A of the
Rules and Regulations (as defined below) and in the form filed
pursuant to Rule 424(b) under the Securities Act is herein
referred to as the "Final Prospectus." The prospectus included
as part of the Registration Statement on the date when the
Registration Statement became effective is referred to herein
as the "Effective Prospectus." Any prospectus included in the
Registration Statement and in any amendment thereto prior to
the effective date of the Registration Statement is referred
to herein as a "Preliminary Prospectus." For purposes of this
Agreement, "Rules and Regulations" mean the rules and
regulations promulgated by the Commission under either the
Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), as applicable.
b. The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary
Prospectus, at the time of filing thereof, complied with the
requirements of the Securities Act and the Rules and Regulations,
and did not include any untrue statement of a material fact or
omit to state any 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; except
that the foregoing does not apply to statements or omissions made
in reliance upon and in conformity with written information
furnished to the Company and the Trust by any Underwriter
specifically for use therein (it being understood that the only
information so provided is the information included in the first
paragraph and first two sentences of the third paragraph under
the caption "Underwriting" in the Final Prospectus). When the
Registration Statement becomes effective and at all times
subsequent thereto up to and including the First Closing Date (as
hereinafter defined), (i) the Registration Statement, the
Effective Prospectus and Final Prospectus and any amendments or
supplements thereto will contain all statements which are
required to be stated therein in accordance with the Securities
Act, the Exchange Act, the
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Trust Indenture Act and the Rules and Regulations and will
comply with the requirements of the Securities Act, the
Exchange Act and the Rules and Regulations, and (ii) neither
the Registration Statement, the Effective Prospectus nor the
Final Prospectus nor any amendment or supplement thereto will
include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading; except
that the foregoing does not apply to statements or omissions
made in reliance upon and in conformity with written
information furnished to the Company and the Trust by any
Underwriter specifically for use therein (it being understood
that the only information so provided is the information
included in the first paragraph and first two sentences of the
third paragraph under the caption "Underwriting" in the Final
Prospectus).
c. The Company and each Subsidiary of the Company is duly organized
and validly existing and, except with respect to Argo Federal
Bank, F.S.B. (the "Bank"), as to which no representation is made,
in good standing, under the laws of the respective jurisdictions
of their organization or incorporation, as the case may be, with
full power and authority (corporate, partnership and other, as
the case may be) to own their properties and conduct their
businesses as now conducted and are duly qualified or authorized
to do business and are in good standing in all jurisdictions
wherein the nature of their business or the character of property
owned or leased may require them to be qualified or authorized to
do business, except for jurisdictions in which the failure to so
qualify would not have a Material Adverse Effect on the Company
and its Subsidiaries taken as a whole. The Company and its
Subsidiaries hold all licenses, consents and approvals, and have
satisfied all eligibility and other similar requirements imposed
by federal and state regulatory bodies, administrative agencies
or other governmental bodies, agencies or officials, in each case
as material to the conduct of the respective businesses in which
they are engaged. As used in this Agreement, the term: (i)
"Subsidiary" includes the Trust and any corporation, joint
venture or partnership in which the Company or any Subsidiary of
the Company has an ownership interest, and (ii) the term
"Material Adverse Effect" means a material adverse effect on the
condition (financial or otherwise), results of operations,
properties, management, business affairs or business prospects of
the entity in question.
d. The outstanding stock of each of the Company's corporate
Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable and were not issued in violation of any preemptive
rights or other rights to subscribe for or purchase securities.
All of the outstanding stock of each of the Company's corporate
subsidiaries owned beneficially and of record by the Company is
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owned free and clear of any lien, encumbrance, pledge, equity or
claim. Except as discussed in the Effective Prospectus and the
Final Prospectus, neither the Company nor any of its Subsidiaries
is a partner or joint venturer in any partnership or joint
venture.
e. The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority (trust and other)
to issue and sell its common securities (the "Common Securities")
to the Company pursuant to the Trust Agreement (as defined in
Section 2(e)), to issue and sell the Designated Capital
Securities, to enter into and perform its obligations under this
Agreement, the Trust Agreement and the agreements and instruments
contemplated by the Trust Agreement and described in the
Preliminary Prospectus, the Effective Prospectus, and the Final
Prospectus and to consummate the transactions herein and therein
contemplated; the Trust has conducted and will conduct no
business other than the transactions contemplated by this
Agreement and described in the Preliminary Prospectus, the
Effective Prospectus and the Final Prospectus; the Trust is not a
party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement and the agreements and instruments
contemplated by the Trust Agreement and described in the
Preliminary Prospectus, the Effective Prospectus and the Final
Prospectus; the Trust has no liabilities or obligations other
than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the
Preliminary Prospectus, the Effective Prospectus and the Final
Prospectus; the Trust is not a party to or subject to any action,
suit or proceeding of any nature; the Trust is not, and at the
Closing Date or any Option Closing Date will not be, to the
knowledge of the Offerors, classified as an association taxable
as a corporation for United States federal income tax purposes;
and the Trust is, and as of the Closing Date or any Option
Closing Date will be, treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
f. (i) The equity securities of the Trust, the Junior Subordinated
Debentures and the Guarantee conform to the description thereof
contained in the Preliminary Prospectus, the Effective Prospectus
and the Final Prospectus, and neither Offeror is party to nor
bound by any instrument, agreement or other arrangement (except
as disclosed in the Preliminary Prospectus, the Effective
Prospectus and Final Prospectus) providing for it to issue any
capital stock, rights, warrants, options or other securities,
except for this Agreement.
(ii)(A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Capital Securities in
accordance with and upon the
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terms and conditions set forth in this Agreement, the Trust
Agreement, the Registration Statement and the Preliminary
Prospectus, the Effective Prospectus and Final Prospectus.
All corporate and trust action required to be taken by the
Offerors for the authorization, issuance, sale and delivery of
the Designated Capital Securities, the Common Securities and
the Junior Subordinated Debentures in accordance with the
terms and conditions of this Agreement, the Trust Agreement
and the Indenture (as defined in Section 2(e)) has been
validly and sufficiently taken. The Designated Capital
Securities, the Common Securities and the Debentures, when
delivered in accordance with this Agreement, the Trust
Agreement and the Indenture, will be duly and validly issued
and outstanding, and the Designated Capital Securities will be
fully paid and nonassessable undivided beneficial interests in
the assets of the Trust, will be entitled to the benefits of
the Trust Agreement and will not be issued in violation of or
subject to any preemptive or similar rights, and will conform
in all material respects to the description thereof in the
Registration Statement, the Preliminary Prospectus, the
Effective Prospectus, the Final Prospectus and the Trust
Agreement. None of the Designated Capital Securities,
immediately prior to delivery, will be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction
upon voting or transfer, preemptive rights, claim, or other
title defect.
(B) The Trust Agreement has been duly and validly authorized
and, when duly and validly executed and delivered, will
constitute the valid and legally binding obligation of the
Offerors and will conform in all material respects to the
description thereof contained in the Preliminary Prospectus, the
Effective Prospectus and the Final Prospectus.
(C) The Junior Subordinated Debentures have been duly and
validly authorized, and, when duly and validly executed,
authenticated and issued as provided in the Indenture and
delivered to the Trust pursuant to the Trust Agreement, will
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and will conform in all
material respects to the description thereof contained in the
Preliminary Prospectus, the Effective Prospectus and the Final
Prospectus.
(D) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the guarantee
trustee for the benefit of the Trust, will constitute a valid and
legally binding obligation of the Company and will conform in all
material respects to the description thereof contained in the
Preliminary Prospectus, the Effective Prospectus and the Final
Prospectus.
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(E) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act and will
conform to the description thereof contained in the Preliminary
Prospectus, the Effective Prospectus and the Final Prospectus.
g. The capitalization of the Offerors at June 30, 1998 is as set
forth under the caption "Capitalization" in the Effective
Prospectus and the Final Prospectus. The Offerors' Designated
Capital Securities conform to the description thereof contained
in the Effective Prospectus and the Final Prospectus. Except as
disclosed in the Effective Prospectus and the Final Prospectus,
neither the filing of the Registration Statement nor the offer or
sale of the Designated Capital Securities as contemplated by this
Agreement gives rise to any rights, other than those which have
been waived or satisfied, for or relating to the registration of
any shares of common stock or any other securities of the Company
or of the Trust. The Underwriters will receive good and
marketable title to the Designated Capital Securities to be sold
by the Offerors to be issued and delivered hereunder, free and
clear of all liens, encumbrances, claims, security interests,
restrictions, stockholders' agreements and voting trusts
whatsoever.
h. All of the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable. None of the issued shares of capital stock of the
Company have been issued in violation of any preemptive or
similar rights and there are no preemptive rights or other rights
to subscribe for or to purchase, or any restriction upon the
transfer of, any shares of Common Stock pursuant to the Company's
Certificate of Incorporation, bylaws or other governing documents
or any agreement or other instrument to which the Company is a
party or by which it may be bound, except as described in the
Effective Prospectus and the Final Prospectus and except for
restrictions on transfer imposed under applicable securities
laws.
i. All offers and sales of the Company's securities prior to the
date hereof were at all relevant times duly registered or exempt
from the registration requirements of the Securities Act and were
duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or
Blue Sky laws, or if not registered in compliance with the
applicable federal and state securities laws, any actions arising
from such failure to register any such securities are barred by
applicable statute of limitations.
j. The Offerors have full legal right, power and authority to enter
into this Agreement and to sell and deliver the Designated
Capital Securities to be
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sold to the Underwriters as provided herein, and this
Agreement has been duly authorized, executed and delivered by
them and constitutes a valid and binding agreement of the
Offerors enforceable against them in accordance with its
terms. No consent, approval, authorization or order of any
court or governmental agency or body or third party is
required for the performance of this Agreement, the Trust
Agreement, the Guarantee or the Indenture by the Offerors or
the consummation by the Offerors of the transactions
contemplated hereby or thereby, except such as have been
obtained and such as may be required by the National
Association of Securities Dealers, Inc. ("NASD") or under the
Securities Act, or state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Capital Securities by the Underwriters. The issue
and sale of the Designated Capital Securities to be sold by
the Trust, the Offerors' performance of this Agreement, the
Trust Agreement, the Guarantee and the Indenture and the
consummation of the transactions contemplated hereby and
thereby will not result in a breach or violation of, or
conflict with, any of the terms and provisions of, or
constitute a material default by the Company or any of its
Subsidiaries under, any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or to
which the Company or any of its Subsidiaries or any of their
respective properties is subject, the Certificate of
Incorporation or bylaws of the Company or any of its
Subsidiaries or any statute or any judgment, decree, order,
rule or regulation of any court or governmental agency or body
applicable to the Company or any Subsidiary or any of their
respective properties. Neither the Company nor any Subsidiary
is (i) in violation of its Certificate of Incorporation, (ii)
in violation of any partnership agreement or joint venture
agreement, as the case may be, (iii) in violation of its
bylaws or any law, administrative rule or regulation or
arbitrators' or administrative or court decree, judgment or
order or (iv) in violation of or default (there being no
existing state of facts which with notice or lapse of time or
both would constitute a default) in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, deed of trust,
mortgage, loan agreement, note, lease, agreement or other
instrument or permit to which it is a party or by which it or
any of its properties is or may be bound.
k. The consolidated financial statements and the related notes of
the Company, as set forth in the Registration Statement, the
Effective Prospectus and the Final Prospectus, present fairly the
financial position, results of operations and changes in
financial position and cash flows of the Company and its
Subsidiaries, at the dates and for the periods to which they
relate and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
throughout the periods indicated. The other
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financial statements and schedules as set forth in the
Registration Statement, the Effective Prospectus and the Final
Prospectus conform to the requirements of the Securities Act,
the Exchange Act and the Rules and Regulations and present
fairly the information presented therein on the basis stated
for the periods shown. KPMG Peat Marwick LLP, whose reports
appear in the Effective Prospectus and the Final Prospectus,
are independent accountants as required by the Securities Act
and the Rules and Regulations.
l. Subsequent to June 30, 1998, neither the Company nor any
Subsidiary has sustained any material loss or interference with
its business or properties from fire, flood, hurricane,
earthquake, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, which is not disclosed in the Effective
Prospectus and the Final Prospectus; and subsequent to the
respective dates as of which information is given in the
Registration Statement, the Effective Prospectus and the Final
Prospectus, (i) neither the Company nor any of its Subsidiaries
has incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions not in the
ordinary course of business, and (ii) there has not been any
change in the capital stock, partnership interests, joint venture
interests, long-term debt or obligations under capital leases of
the Company and its Subsidiaries, or any issuance of options,
warrants or rights to purchase the capital stock of the Company,
except in each case as described in or contemplated by the
Effective Prospectus and the Final Prospectus.
m. Except as described in the Effective Prospectus and the Final
Prospectus, there is not pending, or to the knowledge of the
Company threatened, any action, suit, proceeding, inquiry or
investigation, to which the Company, any of its Subsidiaries or
any of their officers or directors is a party, or to which the
property of the Company or any Subsidiary is subject, before or
brought by any court or governmental agency or body, wherein an
unfavorable decision, ruling or finding could prevent or
materially hinder the consummation of this Agreement or result in
a Material Adverse Effect on the Company or its Subsidiaries.
n. There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in
the Registration Statement, the Effective Prospectus or the Final
Prospectus or to be filed as exhibits to the Registration
Statement which have not been described or filed as required.
o. Except as described in the Effective Prospectus and the Final
Prospectus, the Company and each of its Subsidiaries have good
and marketable title to all
8
real and material personal property owned by them, free and
clear of all liens, charges, encumbrances or defects except
those reflected in the financial statements hereinabove
described. The real and personal property and buildings
referred to in the Effective Prospectus and the Final
Prospectus which are leased from others by the Company are
held under valid, subsisting and enforceable leases. The
Company or its Subsidiaries owns or leases all such properties
as are necessary to its operations as now conducted.
p. The Company's system of internal accounting controls taken as a
whole is sufficient to meet the broad objectives of internal
accounting control insofar as those objectives pertain to the
prevention or detection of errors or irregularities in amounts
that would be material in relation to the Company's financial
statements; and, except as disclosed in the Effective Prospectus
and the Final Prospectus, neither the Company nor any of its
Subsidiaries nor any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any
Subsidiary or received or retained any funds on behalf of the
Company or any Subsidiary in violation of any law, rule or
regulation.
q. The Company and its Subsidiaries have filed all federal, state
and local income, excise and franchise tax returns required to
be filed through the date hereof and have paid all taxes shown as
due therefrom; and there is no tax deficiency that has been, nor
does the Company or any Subsidiary have knowledge of any tax
deficiency which is likely to be asserted against the Company or
its Subsidiaries, which if determined adversely could have a
Material Adverse Effect on the Company or its Subsidiaries.
r. The Company and its Subsidiaries operate their respective
businesses in conformity in all material respects with all
applicable statutes, common laws, ordinances, decrees, orders,
rules and regulations of governmental bodies. The Company and its
Subsidiaries have all maintained in full force and effect
licenses, approvals or consents to operate their respective
businesses in all locations in which such businesses are
currently being operated; neither the Company nor any Subsidiary
has received any notification that any revocation or limitation
thereof is threatened or pending and, except as disclosed in the
Effective Prospectus and the Final Prospectus, there is not
pending any change under any law, regulation, license or permit
which could have a Material Adverse Effect on the Company or any
of its Subsidiaries, and the Company and its Subsidiaries are not
aware of any existing or imminent matter which may have a
Material Adverse Effect on the Company or its Subsidiaries other
than as specifically disclosed in the Effective Prospectus and
the Final Prospectus. The Company has not engaged in any
activity, whether alone or in concert with one of its customers,
creating the
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potential for exposure to material civil or criminal monetary
liability or other material sanctions under federal or state
laws regulating consumer credit transactions, debt collection
practices or land sales practices.
s. Neither the Company nor any of its Subsidiaries have failed to
file with the applicable regulatory authorities any statement,
report, information or form required by any applicable law,
regulation or order where the failure to file the same would have
a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole; all such filings or submissions were in
material compliance with applicable laws when filed and no
material deficiencies have been asserted by any regulatory
commission, agency or authority with respect to such filings or
submissions.
t. No labor dispute exists with the Company's employees or with
employees of its Subsidiaries or is imminent which could have a
Material Adverse Effect on the Company or any of its
Subsidiaries. The Company is not aware of any existing or
imminent labor disturbance by its employees or by any employees
of its Subsidiaries which could be expected to have a Material
Adverse Effect on the Company or any of its Subsidiaries.
u. Except as disclosed in the Effective Prospectus and the Final
Prospectus, the Company and its Subsidiaries own or possess, or
can acquire on reasonable terms, the licenses, copyrights,
trademarks, service marks and trade names presently employed by
them in connection with the businesses now operated by them, and
neither the Company nor any of its Subsidiaries has received any
notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, alone or in
the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect on the Company
or its Subsidiaries.
v. Neither the Company nor any of its Subsidiaries, nor any of the
directors, officers, employees or agents of the Company and its
Subsidiaries has taken and will not take, directly or indirectly,
any action designed to cause or result in, or which has
constituted or which might be expected to constitute,
stabilization or manipulation of the price of the Designated
Capital Securities in connection with their sale.
w. The Company and each of its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged. The Company has no reason
to believe that it or any of its Subsidiaries will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar
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insurers as may be necessary to continue their respective
businesses at a comparable cost.
x. The Company is not an "investment company" within the meaning of
such term as defined under the Investment Company Act of 1940
and the rules and regulations of the Commission thereunder.
y. The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA");
no "reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"), and each
"pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
2. Purchase, Sale and Delivery of the Designated Capital Securities.
a. On the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein
set forth, the Offerors hereby agree that the Trust shall issue
and sell the Firm Capital Securities to the several Underwriters,
and each Underwriter, severally and not jointly, agrees to
purchase that number of Firm Capital Securities set forth in
Schedule I opposite its name. Because the proceeds from the sale
of the Firm Capital Securities will be used to purchase from the
Company its Junior Subordinated Debentures, the Company shall pay
to the Underwriters a commission of $_______ per Firm Capital
Security purchased.
b. The Trust grants to the Underwriters an option to purchase up to
____ Option Capital Securities. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm
Capital Securities. The purchase price for any such Option
Capital Securities so acquired shall be as set forth in Section
2(a) above.
c. The options granted hereby may be exercised as to all or any part
of the Option Capital Securities at any time within 30 days after
the date the
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Registration Statement becomes effective. The Underwriters
shall not be under any obligation to purchase any Option
Capital Securities prior to the exercise of such option. The
option granted hereby may be exercised by the Underwriters
upon the giving of written notice to the Company setting forth
the number of Option Capital Securities to be purchased and
the date and time for delivery of and payment for such Option
Capital Securities and stating that the Option Capital
Securities referred to therein are to be used for the purpose
of covering over-allotments in connection with the
distribution and sale of the Firm Capital Securities. If such
notice is given prior to the First Closing Date (as defined
herein), then the date set forth therein for such delivery and
payment shall not be earlier than two full business days
thereafter or the First Closing Date, whichever occurs later.
If such notice is given on or after the First Closing Date,
then the date set forth therein for such delivery and payment
shall not be earlier than three full business days thereafter.
In either event, the date so set forth shall not be more than
15 full business days after the date of such notice. The date
and time set forth in such notice is herein called the "Option
Closing Date." Upon exercise of the option, the Company shall
become obligated to sell to the Underwriters, and, subject to
the terms and conditions herein set forth, the Underwriters
shall become obligated to purchase, for the account of each
Underwriter, severally and not jointly, the number of Option
Capital Securities specified in such notice. Option Capital
Securities shall be purchased for the accounts of the
Underwriters in proportion to the number of Firm Capital
Securities set forth opposite such Underwriter's name in
Schedule I hereto, as except that the respective purchase
obligations of each Underwriter with respect to the Option
Capital Securities may be adjusted so that no Underwriter
shall be obligated to purchase Option Capital Securities other
than in 100 unit increments.
d. Certificates in fully registered form for the Firm Capital
Securities which each Underwriter has agreed to purchase
hereunder shall be deposited with a custodian for and registered
in the name of a nominee of DTC and shall be delivered by or on
behalf of the Company to the Underwriters for the account of such
Underwriters against payment by such Underwriters or on their
behalf of the respective purchase prices therefor by wire
transfer of immediately available funds, payable to the order of
the Trust at the offices of Xxxxxx Xxxxxxx Incorporated ("Xxxxxx
Xxxxxxx"), Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at
such other place as may be agreed upon by Xxxxxx Xxxxxxx, the
Company and the Trust, at 10:00 A.M., Boston time, on the third
full business day after this Agreement becomes effective, such
time of delivery against payment being herein referred to as the
"First Closing Date." The First Closing Date and the Option
Closing Date are herein individually referred to as the "Closing
Date" and collectively referred
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to as the "Closing Dates." Beneficial interests in the Firm
Capital Securities will be shown on, and transfers will be
effected through, records maintained by DTC and its
participants. Certificates in fullyregistered form for the
Option Capital Securities which each Underwriter shall have
agreed to purchase hereunder shall be similarly delivered by
or on behalf of the Trust on the Option Closing Date against
payment by such Underwriter or on its behalf of the purchase
price in the manner set forth above. The certificates in fully
registered form for the Designated Capital Securities to be
delivered will be in good delivery form and in such
denominations and registered in such names as Xxxxxx Xxxxxxx
may request not less than 48 hours prior to the First Closing
Date or the Option Closing Date, as the case may be. It is
understood that an Underwriter may (but shall not be obligated
to) make payment on behalf of any Underwriter or Underwriters
for the Designated Capital Securities to be purchased by such
Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their
obligations hereunder.
e. The Offerors propose that the Trust issue the Designated Capital
Securities pursuant to an Amended and Restated Trust Agreement
among Wilmington Trust Company, as Property Trustee, Wilmington
Trust Company, as Delaware Trustee, the Administrative Trustees
named therein (collectively, the "Trustees"), and the Company, in
substantially the form heretofore delivered to the Underwriters,
said Agreement being referred to herein as the "Trust Agreement."
In connection with the issuance of the Designated Capital
Securities, the Company proposes (i) to issue its Junior
Subordinated Deferrable Interest Debentures (the "Debentures")
pursuant to an Indenture, between the Company and Wilmington
Trust Company, as debenture trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Capital Securities
pursuant to a Guarantee Agreement between the Company and
Wilmington Trust Company, as guarantee trustee (the "Guarantee"),
to the extent described therein.
3. Offering by the Underwriters. After the Registration Statement becomes
effective, the several Underwriters propose to offer for sale to the public the
Firm Designated Capital Securities and any Option Capital Securities which shall
be sold at the prices and upon the terms set forth in the Final Prospectus.
4. Covenants of the Offerors. The Offerors jointly and severally covenant
and agree with each of the Underwriters that:
a. The Offerors shall comply with the provisions of and make all
requisite filings with the Commission pursuant to Rules 424(b),
430A and 462(b) of the Rules and Regulations and will notify the
Underwriters promptly in
13
writing of all such filings. The Offerors shall notify the
Underwriters promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement, the
Effective Prospectus or the Final Prospectus or for additional
information; the Offerors shall prepare and file with the
Commission, promptly upon the request of the Underwriters, any
amendments of or supplements to the Registration Statement,
the Effective Prospectus or the Final Prospectus which, in the
Underwriters' reasonable opinion, may be necessary or
advisable in connection with the distribution of the
Designated Capital Securities; and the Offerors shall not file
any amendment of or supplement to the Registration Statement,
the Effective Prospectus or the Final Prospectus which is not
approved by the Underwriters after reasonable notice thereof.
The Offerors shall advise the Underwriters promptly of the
issuance by the Commission or any jurisdiction or other
regulatory body of any stop order or other order suspending
the effectiveness of the Registration Statement, suspending or
preventing the use of any Preliminary Prospectus, the
Effective Prospectus or the Final Prospectus or suspending the
qualification of the Designated Capital Securities for
offering or sale in any jurisdiction, or of the institution of
any proceedings for any such purpose; and the Offerors shall
use their best efforts to prevent the issuance of any stop
order or other such order and, should a stop order or other
such order be issued, to obtain as soon as possible the
lifting thereof.
b. The Offerors will take or cause to be taken all necessary action
and furnish to whomever the Underwriters direct, such information
as may be reasonably required in qualifying the Designated
Capital Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Underwriters may
designate and will continue such qualifications in effect for as
long as may be reasonably necessary to complete the distribution.
The Offerors shall not be required to qualify as a foreign
corporation or (except for the sole purpose of complying with
Blue Sky filing requirements) or to file a general consent to
service of process in any jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign
corporation.
c. Within the time during which a Final Prospectus relating to the
Designated Capital Securities is required to be delivered under
the Securities Act, the Offerors shall comply with all
requirements imposed upon it by the Securities Act, as now and
hereafter amended, and by the Rules and Regulations, as from time
to time in force, so far as is necessary to permit the
continuance of sales of or dealings in the Designated Capital
Securities as contemplated by the provisions hereof and the Final
Prospectus. If during such period any event occurs as a result of
which the Final Prospectus as then
14
amended or supplemented would include an untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Securities Act, the
Offerors shall promptly notify the Underwriters and shall
amend the Registration Statement or supplement the Final
Prospectus (at the expense of the Offerors) so as to correct
such statement or omission or effect such compliance.
d. The Offerors will furnish without charge to the Underwriters and
make available to the Underwriters copies of the Registration
Statement (four of which shall be signed and shall be accompanied
by all exhibits, including any which are incorporated by
reference, which have not previously been furnished), each
Preliminary Prospectus, the Effective Prospectus and the Final
Prospectus, and all amendments and supplements thereto, including
any prospectus or supplement prepared after the effective date of
the Registration Statement, in each case as soon as such document
becomes available and in such quantities as the Underwriters may
reasonably request.
e. The Offerors will (i) deliver to the Underwriters at such office
or offices as the Underwriters may designate as many copies of
the Preliminary Prospectus and Final Prospectus as the
Underwriters may reasonably request, and (ii) for a period of not
more than nine months after the Registration Statement becomes
effective, send to the Underwriters as many additional copies of
the Final Prospectus and any supplement thereto as the
Underwriters may reasonably request.
f. The Offerors shall make generally available to its security
holders, in the manner contemplated by Rule 158(b) under the
Securities Act as promptly as practicable and in any event no
later than 90 days after the end of its fiscal quarter in which
the first anniversary of the effective date of the Registration
Statement occurs, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act covering a period of at
least 12 consecutive months beginning after the effective date of
the Registration Statement.
g. The Offerors will apply the net proceeds from the sale of the
Designated Capital Securities as set forth under the caption "Use
of Proceeds" in the Final Prospectus.
h. During a period of five years from the effective date of the
Registration Statement, the Offerors will furnish to the
Underwriters copies of all reports and other communications
(financial or other) furnished by the Company to
15
its stockholders and the Trust to the holders of its Capital
Securities and, as soon as available, copies of any reports or
financial statements furnished or filed by the Offerors to or
with the Commission or any national securities exchange on
which any class of securities of the Offerors may be listed.
i. The Offerors will, from time to time, after the effective date of
the Registration Statement, file with the Commission such
reports as are required by the Securities Act, the Exchange Act
and the Rules and Regulations, and shall also file with state
securities commissions in states where the Designated Capital
Securities have been sold by the Underwriters (as the
Underwriters shall have advised the Offerors in writing) such
reports as are required to be filed by the securities acts and
the regulations of those states.
j. Except pursuant to this Agreement or with the Underwriters'
written consent, for a period of 180 days from the effective date
of the Registration Statement, the Offerors will not, and the
Company has provided agreements executed by each of its executive
officers and directors, providing that for a period of 180 days
from the First Closing Date, such person or entity will not offer
for sale, sell or grant any options (other than pursuant to
existing employee benefit plans and agreements, other existing
compensation agreements and, existing stock options), rights or
warrants with respect to any Designated Capital Securities.
k. If at any time during the 25 day period after the Registration
Statement is declared effective, any rumor, publication or event
relating to or affecting the Offerors shall occur as a result of
which, in the Underwriters' opinion, the market price for the
Designated Capital Securities has been or is likely to be
materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of
the Final Prospectus), the Offerors will, after written notice
from the Underwriters advising them as to the effect set forth
above, prepare, consult with the Underwriters concerning the
substance of, and disseminate a press release or other public
statement, reasonably satisfactory to the Underwriters,
responding to or commenting on such rumor, publication or event.
l. The Company will not take, directly or indirectly, any action
which would cause or result in the delisting of the Trust's
Capital Securities on the American Stock Exchange, prior to the
First Closing Date or, if the Underwriters exercise the option
granted by the Offerors to cover overallotments, prior to the
Option Closing Date.
5. Expenses. The Company agrees with the Underwriters that (a) whether
or not the transactions contemplated by this Agreement are consummated or
this Agreement becomes effective
16
or is terminated, the Company will pay all fees and expenses incident to the
performance of the obligations of the Offerors hereunder, including, but not
limited to, (i) the Commission's registration fee, (ii) the expenses of
printing (or reproduction) and distributing the Registration Statement
(including the financial statements therein and all amendments and exhibits
thereto), each Preliminary Prospectus, the Effective Prospectus, the Final
Prospectus, any amendments or supplements thereto, and this Agreement and
other underwriting documents, including the Underwriters' Questionnaires and
Blue Sky Memoranda, (iii) fees and expenses of accountants and counsel for
the Company, (iv) expenses of registration or qualification of the Designated
Capital Securities under state Blue Sky and securities laws, including the
legal fees of counsel to the Underwriters (which legal fees shall not exceed
$10,000) plus disbursement and expenses in connection therewith, (v) filing
fees paid or incurred by the Underwriters and related fees and expenses of
counsel to the Underwriters in connection with filings with the NASD, (vi)
fees, costs and expenses associated with the registration and listing of the
Designated Capital Securities on the American Stock Exchange, (vii) the costs
and charges of the Offerors' transfer agent and registrar and the cost of
preparing the certificates for the Designated Capital Securities, (viii) the
fees and expenses of the Trustee under the Trust Agreement and the fees and
expenses of the Trustee's counsel, (ix) all other costs and expenses incident
to the performance of their obligations hereunder not otherwise provided for
in this Section 5; and (b) the out-of-pocket expenses, including counsel fees
(which shall not exceed $75,000) plus expenses, other disbursements and
expenses incurred by the Underwriters in connection with investigating,
preparing to market and marketing the Designated Capital Securities and
proposing to purchase and purchasing the Designated Capital Securities under
this Agreement will be borne and paid by the Company if the sale of the
Designated Capital Securities provided for herein is consummated or if the
sale of the Designated Capital Securities provided for herein is not
consummated by reason of the termination of this Agreement by the Offerors
pursuant to Section 12(a)(I), or because of any failure or refusal on the
part of the Offerors to comply or fulfill any of the conditions of this
Agreement. Except as provided in this Section 5, the Underwriters shall pay
all of their own expenses.
6. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters to purchase and pay for the Designated
Capital Securities shall be subject, in their discretion, to the accuracy of
the representations and warranties of the Offerors herein as of the date
hereof and as of the Closing Date as if made on and as of the Closing Date,
to the accuracy of the statements of the Offerors' officers made pursuant to
the provisions hereof, to the performance by the Offerors of all of their
covenants and agreements hereunder and to the following additional conditions:
a. The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 5:30 P.M.,
Washington, D.C. time, on the day following the date of this
Agreement, or such later time and date as shall have been
consented to by the Underwriters and all filings required by
Rules 424, 430A and 462 of the Rules and Regulations shall have
been made; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been
17
instituted or threatened or, to the knowledge of the Offerors
or the Underwriters, shall be contemplated by the Commission;
any request of the Commission for additional information (to
be included in the Registration Statement or the Final
Prospectus or otherwise) shall have been complied with to the
Underwriters' satisfaction; and the NASD, upon review of the
terms of the public offering of the Designated Capital
Securities, shall not have objected to such offering, such
terms or the Underwriters' participation in the same.
b. No Underwriter shall have advised the Offerors that the
Registration Statement, Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or any
supplement thereto, contains an untrue statement of fact which,
in the Underwriters' reasonable judgment, is material, or omits
to state a fact which, in the Underwriters' judgment, is material
and is required to be stated therein or necessary to make the
statements therein not misleading and the Offerors shall not have
cured such untrue statement of fact or stated a statement of fact
required to be stated therein.
c. The Underwriters shall have received an opinion, dated the
Closing Date, from Xxxxxx Xxxxx LLP ("Xxxxxx Xxxxx"), special
counsel for the Offerors, substantially to the effect that:
(1) The Company has been duly organized and is validly existing
in good standing as a corporation under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as now conducted,
and is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions
where the failure to so qualify would have a Material
Adverse Effect upon the Company and its Subsidiaries taken
as a whole. The Company holds all licenses, certificates,
permits, franchises and authorizations from governmental
authorities which are material to the conduct of its
business in all locations in which such business is
currently being conducted.
(2) Each of the Company's Subsidiaries is validly existing and,
except with respect to the Bank, as to which no opinion is
rendered, in good standing as a corporation under the laws
of the state of its incorporation or organization, as the
case may be, with power and authority to own its properties
and conduct its business as now conducted, and is duly
qualified or authorized to do business and is in good
standing in all other jurisdictions where the failure to so
qualify would have a Material Adverse Effect upon the
Company and
18
its Subsidiaries taken as a whole. The outstanding stock
of each of the Company's Subsidiaries is duly authorized,
validly issued, fully paid and nonassessable. All of the
outstanding stock of each of the Subsidiaries owned
beneficially and of record by the Company is owned free
and clear of any liens, encumbrances, equities and
claims. No options, warrants or other rights to
purchase, agreements or other obligations to issue or
other rights to convert any obligations into any shares
of capital stock or of ownership interests in any of the
Company's Subsidiaries are outstanding. Each of the
Company's Subsidiaries holds all licenses, certificates,
permits, franchises and authorizations from governmental
authorities which are material to the conduct of its
business in all locations in which such business is
currently being conducted.
(3) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority (trust and
other) to issue and sell its Common Securities to the
Company pursuant to the Trust Agreement, to issue and sell
the Designated Capital Securities, to enter into and perform
its obligations under this Agreement, the Trust Agreement
and the agreements and instruments contemplated by the Trust
Agreement and described in the Preliminary Prospectus, the
Effective Prospectus, and the Final Prospectus and to
consummate the transactions herein and therein contemplated;
the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement
and the agreements and instruments contemplated by the Trust
Agreement and described in the Preliminary Prospectus, the
Effective Prospectus and the Final Prospectus; the Trust is
not a party to or subject to any action, suit or proceeding
of any nature; the Trust is not, and at the Closing Date or
any Option Closing Date will not be classified as an
association taxable as a corporation for United States
federal income tax purposes.
(4) (i) The Common Securities, the Junior Subordinated
Debentures and the Guarantee conform to the description
thereof contained in the Preliminary Prospectus, the
Effective Prospectus and the Final Prospectus, and to such
counsel's best knowledge, neither Offeror is a party to nor
bound by any instrument, agreement or other arrangement
(except as disclosed in the Preliminary Prospectus, the
Effective Prospectus and Final Prospectus) providing for it
to issue any capital stock, rights, warrants, options or
other securities, except for this Agreement.
19
(ii)(A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Capital Securities
and the Common Securities in accordance with and upon the
terms and conditions set forth in this Agreement, the Trust
Agreement, the Registration Statement and the Preliminary
Prospectus, the Effective Prospectus and Final Prospectus.
All corporate and trust action required to be taken by the
Offerors for the authorization, issuance, sale and delivery
of the Designated Capital Securities, the Common Securities
and the Junior Subordinated Debentures in accordance with
the terms and conditions of this Agreement, the Trust
Agreement and the Indenture has been validly and
sufficiently taken. The Designated Capital Securities, the
Common Securities and the Junior Subordinated Debentures,
when delivered in accordance with this Agreement, the Trust
Agreement and the Indenture, will be duly and validly issued
and outstanding, and the Designated Capital Securities will
be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to
the benefits of the Trust Agreement and will not be issued
in violation of or subject to the Certificate of Trust or
Trust Agreement, any applicable law, or any preemptive or
similar rights, and will conform in all material respects to
the description thereof in the Registration Statement, the
Preliminary Prospectus, the Effective Prospectus, the Final
Prospectus and the Trust Agreement. The holders of the
Designated Capital Securities will be entitled to the
benefits of the Trust Agreement and will be entitled to the
same limitation of personal liability extended to
stockholders of private corporations for profit organized
under the Delaware General Corporation Law. Such opinion may
note that the holders of the Designated Capital Securities
may be required to make payment or provide indemnity or
security as set forth in the Trust Agreement. None of the
Designated Capital Securities, immediately prior to
delivery, will be subject to any security interest, lien,
mortgage, pledge, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, or other title defect.
(B) The Trust Agreement has been duly and validly
authorized and, when duly and validly executed and
delivered, will constitute valid and legally binding
obligations of the Offerors and will conform in all material
respects to the description thereof contained in the
Preliminary Prospectus, the Effective Prospectus and the
Final Prospectus.
(C) The Junior Subordinated Debentures have been duly and
validly authorized, and, when duly and validly executed,
20
authenticated and issued as provided in the Indenture and
delivered to the Trust pursuant to the Trust Agreement, will
constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture.
(D) The Guarantee has been duly and validly authorized,
and, when duly and validly executed and delivered to the
guarantee trustee for the benefit of the Trust, will
constitute a valid and legally binding obligation of the
Company.
(E) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture
Act.
(F) The Indenture has been duly and validly authorized and,
when duly and validly executed and delivered, will
constitute a valid and legally binding obligation of the
Company and will conform in all material respects to the
description thereof contained in the Preliminary Prospectus,
the Effective Prospectus and the Final Prospectus.
(5) As of the dates specified therein, the Offerors had
authorized and issued capital stock as set forth under the
caption "Capitalization" in the Final Prospectus. The
capital stock of the Company conforms to the description
thereof contained in the Preliminary Prospectus, the
Effective Prospectus and the Final Prospectus in all
material respects. All of the outstanding shares of the
capital stock of the Company have been duly authorized and
are validly issued, fully paid and nonassessable; none of
the issued shares of Common Stock has been issued in
violation of or subject to any preemptive rights provided
for by law or by the Company's Certificate of Incorporation
or, to the knowledge of such counsel, any agreement or other
instrument to which the Company is a party or by which it
may be bound except as described in the Effective Prospectus
and Final Prospectus and except for restrictions on transfer
imposed under applicable securities laws.
(6) Neither the filing of the Registration Statement nor the
offer or sale of the Designated Capital Securities as
contemplated by this Agreement gives rise to any rights,
other than those which have been waived or satisfied, for or
relating to the registration of any Designated Capital
Securities or any other securities of the Offerors. The
Underwriters will receive good and marketable title to the
Designated Capital Securities to be sold by the Offerors to
be issued and delivered pursuant to this Agreement, free and
clear of all liens,
21
encumbrances, claims, security interests, restrictions,
stockholders' agreements and voting trusts whatsoever.
All offers and sales of the Company's securities prior to
the date hereof were at all relevant times duly
registered or exempt from the registration requirements
of the Securities Act and were duly registered or the
subject of an exemption from the registration
requirements of applicable state securities or Blue Sky
laws, or if not registered in compliance with the
applicable federal and state securities laws, any actions
arising from such failure to register any such securities
are barred by applicable statute of limitations.
(7) The Offerors have full legal right, power and authority to
enter into this Agreement and to issue, sell and deliver the
Designated Capital Securities to be sold by it to the
Underwriters as provided herein, and this Agreement has been
duly authorized, executed and delivered by the Offerors and
constitutes a valid and legally binding obligation of the
Offerors enforceable against the Offerors in accordance with
its terms, except as enforceability may be limited by
general equitable principles, bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, fraudulent
conveyance or other laws affecting creditors' rights
generally.
(8) No consent, approval, authorization or order of any court or
governmental agency or body or third party is required for
the performance of this Agreement by the Offerors or the
consummation by the Offerors of the transactions
contemplated hereby, except such as have been obtained under
the Securities Act and such as may be required by the NASD
and under state securities or Blue Sky laws (as to which no
opinion need be rendered) in connection with the purchase
and distribution of the Designated Capital Securities by the
several Underwriters. The performance of this Agreement by
the Offerors and the consummation by the Offerors of the
transactions contemplated hereby will not conflict with or
result in a breach or violation by the Offerors of any of
the terms or provisions of, or constitute a default by the
Offerors under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to
such counsel to which the Offerors are a party or to which
the Company or its properties is subject, the Certificate of
Incorporation or bylaws of the Company or any Subsidiary,
any statute, or any judgment, decree, order, rule or
regulation known to such counsel of any court or
governmental agency or body applicable to the Company or any
of its Subsidiaries or their properties.
22
(9) Except as described in the Final Prospectus, there is not
pending, or to the best knowledge of such counsel
threatened, any action, suit, proceeding, inquiry or
investigation, to which the Company or any of its
Subsidiaries is a party, or to which the property of the
Company or any of its Subsidiaries is subject, before or
brought by any court or governmental agency or body, which,
if determined adversely to the Company or any of its
Subsidiaries, could result in any Material Adverse Effect
upon the Company or any of its Subsidiaries.
(10) To the best knowledge of such counsel, no default exists,
and no event has occurred which with notice or after the
lapse of time to cure or both, would constitute a default,
in the due performance and observance of any term, covenant
or condition of any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or to
which they or their properties are subject, or of the
Certificate of Incorporation or bylaws of the Company or any
of its Subsidiaries.
(11) To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor any of its Subsidiaries is
in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or
any of its Subsidiaries and material to the Company and its
Subsidiaries taken as a whole or any decree of any court or
governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries.
(12) The Registration Statement and all post effective amendments
thereto have become effective under the Securities Act, and,
to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have
been instituted or are threatened, pending or contemplated
by the Commission. All filings required by Rule 424 and Rule
430A of the Rules and Regulations have been made; the
Registration Statement, the Effective Prospectus and Final
Prospectus, and any amendments or supplements thereto
(except for the financial statements and schedules included
therein as to which such counsel need express no opinion),
as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of
the Securities Act and the Rules and Regulations; the
descriptions in the Registration Statement, the Effective
Prospectus and the Final Prospectus of statutes,
regulations, legal and governmental proceedings, and
contracts and other documents are
23
accurate in all material respects; and such counsel does
not know of any pending or threatened legal or
governmental proceedings, statutes or regulations
required to be described in the Final Prospectus which
are not described as required nor of any contracts or
documents of a character required to be described in the
Registration Statement or the Final Prospectus or to be
filed as exhibits to the Registration Statement which are
not described and filed as required.
(13) The information in the Effective Prospectus and the Final
Prospectus under the captions "Regulation," "Federal and
State Taxation," "Description of the Capital Securities,"
"Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Relationship Among the
Capital Securities, the Junior Subordinated Debentures and
the Guarantee," "Certain Federal Income Tax Consequences
with Respect to the Issuance of the Capital Securities,"
"ERISA Considerations" and "Description of Capital Stock,"
to the extent that is constitutes matters of law, summaries
of legal matters, documents or proceedings or legal
conclusions, has been reviewed by them and is correct in all
material respects.
In addition to the matters set forth above, Xxxxxx Xxxxx LLP
shall also state that nothing has come to the attention of such
counsel which leads them to believe that the Registration
Statement, the Effective Prospectus and the Final Prospectus or
any amendment or supplement thereto contains an untrue statement
of a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading (except that such counsel need express no view as to
financial or statistical statements, schedules and other
financial information included therein).
In rendering its opinion, counsel may rely, to the extent it
deems such reliance proper, on the opinions of other counsel as
to matters governed by the laws of jurisdictions other than the
United States. In rendering such opinions, such counsel may rely
as to matters of fact, to the extent it deems proper, on
certificates and written statements of responsible officers of
the Offerors and the Subsidiaries and certificates or other
written statements of officers of departments of various
jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and the
Subsidiaries, provided that copies of any such statements or
certificates shall be delivered to Underwriters' counsel. For
purposes of any of the opinions to be rendered by such counsel,
the term "to such counsel's knowledge" shall mean, to the extent
that such opinion relates to a factual issue or to a mixed
question of law and fact, that after examination of documents in
such
24
counsel's files relating to the Offering and considering the
actual knowledge of the individual attorneys in such counsel's
firm who have given substantive attention to matters on behalf
of the Offerors, such counsel finds no reason to believe that
any of such opinions is factually incorrect.
d. The Underwriters shall have received an opinion or opinions,
dated the Closing Date, of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.,
counsel for the Underwriters, with respect to the Registration
Statement and the Final Prospectus, and such other related
matters as the Underwriters may require, and the Offerors shall
have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon
such matters.
e. The Underwriters shall have received from KPMG Peat Marwick LLP,
a letter dated the date hereof and, at the Closing Date, a second
"bring down" letter dated the Closing Date, in form and substance
satisfactory to the Underwriters, stating that they are
independent public accountants with respect to the Offerors and
the Subsidiaries within the meaning of the Securities Act and the
applicable Rules and Regulations, and to the effect that:
(1) In their opinion, the financial statements and schedules
examined by them and included in the Registration Statement
comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the published Rules and Regulations and are presented in
accordance with generally accepted accounting principles;
and they have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the consolidated interim financial
statements, selected financial data, and/or condensed
financial statements derived from audited financial
statements of the Company;
(2) The unaudited selected financial information included in the
Preliminary Prospectus and the Final Prospectus under the
captions "Selected Consolidated Financial Information" for
the years ended December 31, 1997, 1996, 1995, 1994 and 1993
agrees with the corresponding amounts in the audited
financial statements included in the Final Prospectus or
previously reported on.
(3) On the basis of a reading of the latest available unaudited
interim consolidated financial statements of the Company and
its Subsidiaries, a reading of the minute books of the
Company and its Subsidiaries, inquiries of management of the
Company responsible
25
for financial and accounting matters and other specified
procedures, all of which have been agreed to by the
Underwriters, nothing came to their attention that caused
them to believe that:
(a) the unaudited financial statements included in the
Registration Statement do not comply as to form in all
material respects with the accounting requirements of
the federal securities laws and the related published
rules and regulations thereunder or are not in
conformity with generally accepted accounting
principles applied on a basis substantially consistent
with the basis for the audited financial statements
contained in the Registration Statement;
(b) any other unaudited financial statement data included
in the Final Prospectus do not agree with the
corresponding items in the unaudited consolidated
financial statements from which data was derived and
any such unaudited data were not determined on a basis
substantially consistent with the basis for the
corresponding amounts in the audited financial
statements included in the Prospectus;
(c) at a specified date not more than five days prior to
the date of delivery of such respective letter, there
was any change in the consolidated capital stock,
decline in stockholders' equity or increase in
long-term debt of the Company and its Subsidiaries, or
other items specified by the Underwriters, in each case
as compared with amounts shown in the latest balance
sheets included in the Final Prospectus, except in each
case for changes, decreases or increases which the
Final Prospectus discloses have occurred or may occur
or which are described in such letters; and
(d) for the period from the closing date of the latest
consolidated statements of income included in the
Effective Prospectus and the Final Prospectus to a
specified date not more than five days prior to the
date of delivery of such respective letter, there were
any decreases in total revenues or net income of the
Company, or other items specified by the Underwriters,
or any increases in any items specified by the
Underwriters, in each case as compared with the
corresponding period of the preceding year, except in
each case for decreases which the Final Prospectus
discloses have occurred or may occur or which are
described in such letter.
26
They have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information specified by the
Underwriters which are derived from the general accounting
records of the Company and its Subsidiaries, which appear in
the Effective Prospectus and the Final Prospectus and have
compared and agreed such amounts, percentages and financial
information with the accounting records of the Company and
its Subsidiaries or to analyses and schedules prepared by
the Company and its Subsidiaries from its detailed
accounting records.
In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases, it
shall be a further condition to the obligations of the
Underwriters that the Underwriters shall have determined,
after discussions with officers of the Company responsible
for financial and accounting matters and with KPMG Peat
Marwick LLP, that such changes, decreases or increases as
are set forth in such letters do not reflect a material
adverse change in the stockholders' equity or long-term debt
of the Company as compared with the amounts shown in the
latest consolidated balance sheets of the Company included
in the Final Prospectus, or a material adverse change in
total revenues or net income, of the Company, in each case
as compared with the corresponding period of the prior year.
f. There shall have been furnished to the Underwriters certificates
dated the Closing Date and addressed to the Underwriters, signed
by the Chief Executive Officer and by the Chief Financial Officer
of the Company and the Administrative Trustees of the Trust to
the effect that:
(1) the representations and warranties of the applicable Offeror
in Section 1 of this Agreement are true and correct, as if
made at and as of the Closing Date, and the applicable
Offeror has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings
for that purpose have been initiated or, to their knowledge
are pending or threatened under the Securities Act;
(3) all filings required by Rules 424, 430A and 462 of the Rules
and Regulations have been made;
27
(4) they have carefully examined the Registration Statement, the
Effective Prospectus and the Final Prospectus, and any
amendments or supplements thereto, and such documents do not
include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(5) since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement, the
Effective Prospectus or the Final Prospectus which has not
been so set forth.
g. Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, and
except as stated therein, the Company and its Subsidiaries shall
have not sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane,
earthquake, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any court or governmental
action, order or decree, or become a party to or the subject of
any litigation which is material to the Company and its
Subsidiaries taken as a whole, nor shall there have been any
material adverse change, or any development involving a
prospective material adverse change, in the business, properties,
key personnel, capitalization, net worth, results of operations
or condition (financial or other) of the Company and its
Subsidiaries taken as a whole, which loss, interference,
litigation or change, in the Underwriters' judgment, shall render
it unadvisable to commence or continue the offering of the
Securities at the offering prices to the public set forth on the
cover page of the Prospectus or to proceed with the delivery of
the Designated Capital Securities.
All such opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory to the Underwriters and their counsel. The Offerors
shall furnish to the Underwriters such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Underwriters shall
reasonably request.
The respective obligations of the Underwriters to purchase and pay for the
Option Capital Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Designated Capital Securities, except that
all references to the "Closing Date" shall be deemed to refer to the Option
Closing Date, if it shall be a date other than the Closing Date.
7. Condition of the Offerors's Obligations. The obligations hereunder of
the Offerors are subject to the condition set forth in Section 6(a) hereof.
28
8. Indemnification and Contribution.
a. The Company, the Trust and the Bank (collectively, the "Argo
Indemnifying Parties") jointly and severally agree to indemnify
and hold harmless each Underwriter, and its affiliates,
directors, officers, agents, employees and each person, if any,
who controls any Underwriter within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter, its affiliates, directors,
officers, agents, employees and/or controlling person may become
subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon (i)
any inaccuracy in the representations and warranties of the
Offerors contained herein, (ii) any failure of the Offerors to
perform their obligations hereunder or under law or (iii) any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or in any Blue Sky application
or other written information furnished by the Offerors in any
state or other jurisdiction in order to qualify any or all of the
Designated Capital Securities under the securities laws thereof
(a "Blue Sky Application"), or arise out of or are based upon the
omission or alleged omission to state in the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus
or Final Prospectus or any amendment or supplement thereto or any
Blue Sky Application a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter, its affiliates,
directors, officers, agents, employees and each such controlling
person for any legal or other expenses reasonably incurred by
such party in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Argo Indemnifying Parties
will not be liable in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon
any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the
Preliminary Prospectus, the Effective Prospectus or Final
Prospectus or such amendment or such supplement or any Blue Sky
Application in reliance upon and in conformity with written
information furnished to the Offerors by any Underwriter
specifically for use therein (it being understood that the only
information so provided is the information included in the first
paragraph and first two sentences of the third paragraph under
the caption "Underwriting" in any Preliminary Prospectus and the
Final Prospectus and the Effective Prospectus).
29
b. Each Underwriter will indemnify and hold harmless the Argo
Indemnifying Parties, each of their directors or trustees, as
applicable, each of their officers who signed the Registration
Statement and each person, if any, who controls the Argo
Indemnifying Parties within the meaning of the Securities Act,
against any losses, claims, damages or liabilities to which the
Offerors or any such director, trustee, officer or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or any Blue Sky Application, or
arise out of or are based upon the omission or the alleged
omission to state in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus or any
amendment or supplement thereto or any Blue Sky Application, a
material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information
furnished to the Offerors by any Underwriter specifically for use
therein (it being understood that the only information so
provided is the information included in the first paragraph and
first two sentences of the third paragraph under the caption
"Underwriting" in any Preliminary Prospectus and in the Effective
Prospectus and the Final Prospectus).
c. Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, including
governmental proceedings, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the
commencement thereof; but the omission to so notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such
indemnified party; and after notice from the indemnifying party
to such indemnified party of its election to so assume the
defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs
of investigation, except that the indemnified party shall have
the right to employ separate counsel if, in
30
its reasonable judgment, it is advisable for the indemnified
party and any other Underwriter to be represented by separate
counsel, and in that event the fees and expenses of separate
counsel shall be paid by the indemnifying party. In no event
shall the indemnifying party be liable for fees and expenses
of more than one counsel separate from their own counsel for
all indemnified parties in connection with any one action or
separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. The Argo Indemnifying Parties will not,
without prior written consent of each Underwriter, settle or
compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding (or
related cause of action or portion thereof) in respect of
which indemnification may be sought hereunder (whether or not
such Underwriter is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent
includes an unconditional release of such Underwriter from all
liability arising out of such claim, action, suit or
proceeding (or related cause of action or portion thereof).
d. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in
the preceding part of this Section 8 is for any reason held to be
unavailable to the Underwriters, then the Argo Indemnifying
Parties shall contribute to the damages paid by the Underwriters,
and the Underwriters shall contribute to the damages paid by the
Argo Indemnifying Parties provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. In determining the amount of
contribution to which the respective parties are entitled, there
shall be considered the relative benefits received by each party
from the offering of the Securities (taking into account the
portion of the proceeds of the offering realized by each), the
parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and
any other equitable considerations appropriate under the
circumstances. The Argo Indemnifying Parties and the Underwriters
agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation
(even if the Underwriters were treated as one entity for such
purpose). No Underwriter or person controlling such Underwriter
shall be obligated to make contribution hereunder which in the
aggregate exceeds the underwriting discount applicable to the
Shares and/or the Designated Capital Securities, as the case may
be, purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages which such Underwriter and its
controlling persons have otherwise been required to pay in
respect of the same or any similar claim. The Underwriters'
obligations to
31
contribute hereunder are several in proportion to their
respective underwriting obligations and not joint. For
purposes of this Section 8, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as
such Underwriter, and each director or trustee of the Company,
the Trust, or the Bank as applicable, each officer of the
Company who signed the Registration Statement, and each
person, if any, who controls the Argo Indemnifying Parties
within the meaning of Section 15 of the Securities Act, shall
have the same rights to contribution as the Argo Indemnifying
Parties.
e. The obligations of the Argo Indemnifying Parties under this
Section 8 shall be in addition to any liability which the
Offerors 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 Securities Act; 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, director or trustee of the Company,
the Trust or the Bank, as applicable, and to each person, if any,
who controls the Argo Indemnifying Parties within the meaning of
the Securities Act.
9. Default of Underwriters. If any Underwriter defaults in its
obligation to purchase any Designated Capital Securities, hereunder and if
the total number of such Designated Capital Securities which such defaulting
Underwriter agreed but failed to purchase is ten percent or less of the total
number of the Designated Capital Securities, to be sold hereunder, then the
nondefaulting Underwriters shall be obligated severally to purchase (in the
respective proportions which the number of such Designated Capital Securities
set forth opposite the name of each non-defaulting Underwriter in Schedule I,
hereto bears to the total number of such Designated Capital Securities set
forth opposite the names of all the non-defaulting Underwriters), the
Designated Capital Securities which such defaulting Underwriter or
Underwriters agreed but failed to purchase. If any Underwriter so defaults
and the total number of Designated Capital Securities, with respect to which
such default or defaults occur is more than ten percent of the total number
of such Designated Capital Securities to be sold hereunder, and arrangements
satisfactory to the other Underwriters and the Offerors for the purchase of
such Designated Capital Securities by other persons (who may include the
non-defaulting Underwriters) are not made within 36 hours after such default,
this Agreement, insofar as it relates to the sale of the Designated Capital
Securities, will terminate without liability on the part of the
non-defaulting Underwriters or the Offerors except for (i) the provisions of
Section 8 hereof, and (ii) the expenses to be paid or reimbursed by the
Offerors pursuant to Section 5. As used in this Agreement, the term
"Underwriter" includes any person substituted for
32
an Underwriter under this Section 9. Nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Offerors, its
officers and the Underwriters set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Offerors, any of its officers, directors or trustees, as applicable, any
Underwriter or any controlling person, (ii) any termination of this Agreement
and (iii) delivery of and payment for the Designated Capital Securities.
11. Effective Date. This Agreement, after due execution, shall become
effective at whichever of the following times shall first occur: (i) at 11:30
A.M., Washington, D.C. time, on the next full business day following the date on
which the Registration Statement becomes effective or (ii) at such time after
the Registration Statement has become effective as the Underwriters shall
release the Firm Capital Securities for sale to the public; provided, however,
that the provisions of Sections 5, 8, 10 and 11 hereof shall survive termination
of this Agreement. For purposes of this Section 11, the Firm Capital Securities
shall be deemed to have been so released upon the release by the Underwriters
for publication, at any time after the Registration Statement has become
effective, of any newspaper advertisement relating to the Firm Capital
Securities or upon the release by the Underwriters of telegrams offering the
Firm Capital Securities for sale to securities dealers, whichever may occur
first.
12. Termination.
a. The Offerors' obligations under this Agreement may be terminated
by the Offerors by notice to the Underwriters in the event that
the condition set forth in Section 7 shall not have been
satisfied at or prior to the First Closing Date.
b. This Agreement may be terminated by the Underwriters by notice to
the Offerors (i) at any time before the Agreement becomes
effective in accordance with Section 11 hereof; (ii) in the event
that at or prior to the First Closing Date, the Offerors shall
have failed, refused or been unable to perform any agreement on
the part of the Offeror to be performed hereunder or any other
condition to the obligations of the Underwriters hereunder is not
fulfilled; (iii) if at or prior to the Closing Date trading in
securities on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended
or materially limited or minimum or maximum prices shall have
been established on either of such exchanges or such market, or a
banking moratorium shall have been declared by Federal or state
authorities; (iv) if at or prior to the Closing Date trading in
securities of the Company shall have been suspended; or (v) if
there shall have been
33
such a material change in general economic, political or
financial conditions or if the effect of international conditions
on the financial markets in the United States shall be such as,
in the Underwriters' reasonable judgment, makes it inadvisable to
commence or continue the offering of the Designated Capital
Securities at the offering prices to the public set forth on the
cover page of the Final Prospectus or to proceed with the
delivery of the Designated Capital Securities.
c. Termination of this Agreement pursuant to this Section 12 shall
be without liability of any party to any other party other than
as provided in Sections 5 and 8 hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be mailed or delivered or telegraphed
and confirmed in writing to Xxxxxx Xxxxxxx Incorporated, Xxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxxx, or if sent to the
Company or the Trust shall be mailed, delivered or telegraphed and confirmed
in writing to the Company or the Trust at 0000 Xxxx 00xx Xxxxxx, Xxxxxxx,
Xxxxxxxx, Attn: Xxxxxxx X. Xxxxx.
14. Miscellaneous. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Offerors and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this
Agreement. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Offerors and the
several Underwriters and for the benefit of no other person except that (i)
the representations and warranties of the Offerors and contained in this
Agreement shall also be for the benefit of any person or persons who control
any Underwriter within the meaning of Section 15 of the Securities Act, and
(ii) the indemnities by the Underwriters shall also be for the benefit of the
directors of the Company, trustees of the Trust, officers of the Offerors who
have signed the Registration Statement and any person or persons who control
the Offerors within the meaning of Section 15 of the Securities Act. No
purchaser of Designated Capital Securities from any Underwriter will be
deemed a successor because of such purchase. The validity and interpretation
of this Agreement shall be governed by the laws of the Commonwealth of
Massachusetts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
34
If the foregoing is in accordance with your understanding of our agreement,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Offerors and each of the several Underwriters.
Very truly yours,
ARGO BANCORP, INC.
By:
----------------------------------
Name:
Title:
ARGO CAPITAL TRUST CO.
By:
----------------------------------
Name:
Title:
ARGO FEDERAL SAVINGS BANK, F.S.B.
By:
----------------------------------
Name:
Title:
Confirmed and accepted as
of the date first above written.
XXXXXX XXXXXXX INCORPORATED
By:
----------------------------------
Name:
Title:
35
SCHEDULE I
UNDERWRITERS FOR CAPITAL SECURITIES
Number of Firm Capital
Securities
Underwriter to Be Purchased
----------- ----------------------
Xxxxxx Xxxxxxx Incorporated.................
Total........................
36
