EXHIBIT 99.1
Camden National Corporation
125,000 Shares of Common Stock
PLACEMENT AGENCY AGREEMENT
--------------------------
December 3, 1999
XXXX XXXX & CO., INC.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Dear Sirs:
Camden National Corporation, a corporation organized and existing
under the laws of Maine ("Camden") and parent company of Camden National Bank, a
national bank ("Camden National Bank"), proposes, subject to the terms and
conditions stated herein, to offer and sell (the "Stock Offering") 125,000
shares (the "Shares") of its common stock, no par value per share (the "Common
Stock"), pursuant to a Registration Statement on Form S-3 (Registration No. 333-
89407) (including the documents incorporated by reference therein, the
"Registration Statement"). Camden, Camden Acquisition Subsidiary, Inc., KSB
Bancorp, Inc. ("KSB") and Kingfield Savings Bank have entered into a definitive
merger agreement dated as of July 27, 1999 (the "Merger Agreement"), pursuant to
which KSB will be merged with and into Camden (the "Merger"). Camden desires to
appoint you, Xxxx Xxxx & Co., Inc. (the "Agent"), and you are willing to act, on
a best efforts basis, as Camden's agent, on the terms set forth in this
Placement Agency Agreement (the "Agreement"), in connection with the sale of the
Shares pursuant to the Registration Statement.
In consideration of the premises, the mutual agreements contained
herein and of the interests of the parties in the transactions contemplated
hereby, the parties agree as follows:
1. The Offer.
---------
a. On the terms and subject to the conditions of this Agreement, we hereby
confirm your appointment as exclusive Agent of Camden during the term of this
Agreement (the "Term") to assist Camden in the consummation of the Stock
Offering conducted in accordance with the Securities Act of 1933, as amended
(the "Securities Act"). The Term shall end on December 31, 1999, unless earlier
terminated. Subject to the performance by Camden of all its obligations
hereunder and to the completeness and accuracy of all of the representations and
warranties of Camden, you hereby accept such agency and agree on the terms and
conditions set forth in this Agreement to use your best efforts to assist Camden
in selling the Shares pursuant to the Registration Statement. You shall have no
obligation or commitment to purchase any of the Shares or to assure the sale of
any minimum or maximum number of Shares. The Agent may utilize other licensed
brokers with whom it has entered into written agreements and with whom it may
share its Fee.
b. Your agency may be terminated by Camden at any time, upon delivery of
written notice, subject to the provisions of Section 8. Unless earlier
terminated, your agency under this Agreement will continue during the Term. In
the event that your agency is terminated as provided in this Section l(b),
neither you nor Camden shall have any further obligations hereunder, except as
provided in Sections 7, 8, and 10 hereof, which shall survive such termination.
c. A subscription for the Shares for each purchaser (a "Purchaser") shall be
evidenced by the execution by such Purchaser of a Purchase Agreement in the form
attached hereto as Annex A. It is understood that the Purchase Agreement shall
not be regarded as effective unless and until it is executed by Camden, which
reserves the right to refuse to execute the Purchase Agreement in its sole
discretion. Camden promptly shall notify you in writing of the execution of each
Purchase Agreement or of termination thereof or of termination of any
negotiations with respect thereto.
2. Closing of Purchase of Shares; Closing of the Merger and Exchange of Shares.
----------------------------------------------------------------------------
In accordance with paragraph 1c. above, the purchase of the Shares shall be
effective when the Purchase Agreement is accepted by Camden and the purchase
price is paid in accordance with the Purchase Agreement.
3. Representations and Warranties of Camden. Camden represents and warrants as
----------------------------------------
of the date hereof and as of the Closing Date to, and agrees with, you as
follows:
a. The Registration Statement has been declared effective and no stop order has
been entered against it. The Prospectus constituting part of the Registration
Statement (including any documents incorporated by reference) does not, and at
the Closing Time will not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation, warranty and agreement shall not apply to
statements in or omissions from the Registration Statement made in reliance upon
and in conformity with information furnished to Camden in writing by or on
behalf of the Agent expressly for use in the Registration Statement under the
heading Plan of Distribution.
b. The documents of Camden incorporated or deemed to be incorporated by
reference in the Registration Statement at the time they were or hereafter are
filed with the Securities and Exchange Commission (the "Commission") complied
and will comply in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the rules and
regulations of the Commission promulgated thereunder (the "Exchange Act Rules
and Regulations"), and, when read together with the other information in the
Registration Statement, at the date of the Registration Statement and at the
Closing Date, do not and will not include any untrue statements of a material
fact or omit to state any material facts 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.
c. The Commission has not issued, and is not to the knowledge of Camden
threatening to issue, an order preventing or suspending the use of the
Registration Statement nor instituted proceedings for that purpose. At its date
of issue, the Registration
2
Statement conformed in all material respects with the requirements of the
Securities Act and the rules and regulations promulgated thereunder (the
"Securities Act Rules and Regulations").
d. Camden has been duly incorporated and is validly existing and in good
standing under the laws of the State of Maine, with power and authority
(corporate and other) to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and as currently being
conducted and is duly registered as bank holding company under the Bank Holding
Company Act, as amended (the "BHC Act"); Camden is duly qualified to do business
and is in good standing as a foreign corporation in all other jurisdictions
where its ownership or leasing of properties or the conduct of its business
requires such qualification, except those jurisdictions in which the failure to
so qualify would, individually or in the aggregate, result in a material adverse
change in the condition (financial or otherwise), earnings or business affairs
of Camden and its subsidiaries ("Camden Subsidiaries") taken as a whole, whether
or not arising in the ordinary course of business ("Material Adverse Effect on
Camden").
Camden National Bank is a wholly owned subsidiary of Camden. Camden
National Bank is a national bank duly organized and validly existing under the
laws of the United States with power and authority (corporate or other) to own,
lease and operate its properties and to conduct its business as described in the
Registration Statement and as currently being conducted. The deposit accounts of
Camden National Bank are insured by the Federal Deposit Insurance Corporation
("FDIC") up to the maximum amount permitted by law; and no proceedings for the
termination or revocation of such membership or insurance are pending or, to the
knowledge of Camden, threatened. Camden National Bank is duly qualified to
transact business as a foreign corporation and is in good standing in each other
jurisdiction in which the ownership or leasing of its properties or the conduct
of its business requires such qualification, except those jurisdictions in which
the failure to so qualify would, individually or in the aggregate, result in a
Material Adverse Effect on Camden. All of the issued and outstanding shares of
capital stock of Camden National Bank (a) have been duly authorized and are
validly issued, (b) are fully paid and non-assessable, and (c) are directly
owned by Camden free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (other than those imposed by applicable federal and
state securities laws). There are no outstanding rights, warrants or options to
acquire or instruments convertible into or exchangeable for any capital stock of
Camden National Bank.
United Bank is a wholly owned subsidiary of Camden. United Bank is a
state banking organization chartered and validly existing under the laws of the
Maine with power and authority (corporate or other) to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and as currently being conducted. The deposit accounts of United Bank
are insured by the FDIC up to the maximum amount permitted by law; and no
proceedings for the termination or revocation of such membership or insurance
are pending or, to the knowledge of Camden, threatened. United Bank is duly
qualified to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which the ownership or leasing of its properties
or the conduct of its business requires such qualification, except those
jurisdictions in which the failure to so qualify would, individually or in the
aggregate, result in a Material Adverse Effect on Camden. All of the issued and
outstanding shares of capital stock of United Bank (a) have been duly authorized
and are validly
3
issued, (b) are fully paid and non-assessable, and (c) are directly owned by
Camden free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (other than those imposed by applicable federal and
state securities laws). There are no outstanding rights, warrants or options to
acquire or instruments convertible into or exchangeable for any capital stock of
United Bank.
Trust Company of Maine, Inc. is a majority owned indirect subsidiary
of Camden. Trust Company of Maine, Inc. is a trust company duly organized and
validly existing under the laws of the State of Maine with power and authority
(corporate or other) to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and as currently being
conducted. Trust Company of Maine, Inc. is duly qualified to transact business
as a foreign corporation and is in good standing in each other jurisdiction in
which the ownership or leasing of its properties or the conduct of its business
requires such qualification, except those jurisdictions in which the failure to
so qualify would, individually or in the aggregate, result in a Material Adverse
Effect on Camden. All of the issued and outstanding shares of capital stock of
Trust Company of Maine, Inc. (a) have been duly authorized and are validly
issued, and (b) are fully paid and non-assessable. The shares of Trust Company
of Maine, Inc. that are owned indirectly by Camden are free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity (other
than those imposed by applicable federal and state securities laws). There are
no outstanding rights, warrants or options to acquire or instruments convertible
into or exchangeable for any capital stock of Trust Company of Maine, Inc.
e. Camden does not have any Subsidiary, other than Camden National Bank, United
Bank and Trust Company of Maine, Inc. which is a "Significant Subsidiary," as
defined by the Securities Act, or would otherwise have a Material Adverse Effect
on Camden.
f. Except as contemplated by the Registration Statement, subsequent to the
respective dates as of which financial information is given in the Registration
Statement, neither Camden nor Camden National Bank (as the case may be) had or
will have any liabilities, obligations or loss contingencies of any nature
(whether absolute, accrued, contingent or otherwise) of a type required to be
reflected in such Camden financials or Camden regulatory reports or in the
footnotes thereto which are not fully reflected or reserved against therein or
fully disclosed in a footnote thereto, except for liabilities, obligations and
loss contingencies which are not material in the aggregate and which are
incurred in the ordinary course of business, consistent with past practice and
except for liabilities, obligations and loss contingencies which are within the
subject matter of a specific representation and warranty herein and subject, in
the case of any unaudited statements, to normal, recurring audit adjustments and
the absence of footnotes.
g. Camden has all requisite corporate power and authority to execute, deliver
and perform this Agreement. The distribution of the Registration Statement and
the execution, delivery and performance of this Agreement have been duly
authorized by the Board of Directors of Camden.
4
h. The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time or both, would constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any properties or assets of
Camden or the Camden Subsidiaries under or pursuant to, the respective
certificates of incorporation, charters or bylaws of Camden and the Camden
Subsidiaries, any statute, any indenture, mortgage, deed of trust, note
agreement or other agreement or instrument to which Camden or any Camden
Subsidiary is a party or by which Camden or any Camden Subsidiary is bound or to
which any of the properties or assets of Camden or any Camden Subsidiary is
subject, or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over Camden or the Camden Subsidiaries or their
properties, except to such extent as does not have a Material Adverse Effect on
Camden. No consent, filing, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
herein contemplated, except such as may be required under the Securities Act or
under any state securities laws.
i. Except as set forth in the Registration Statement there is not now pending
or, to the knowledge of Camden, threatened, any legal or regulatory action,
investigation, charges, suit or proceeding to which Camden or any Camden
Subsidiary is a party or of which the property of Camden or any Camden
Subsidiary is the subject, before or by any court, regulatory or administrative
authority or governmental agency or body, domestic or foreign, which could
reasonably be expected to result in any Material Adverse Effect on Camden. The
aggregate of all litigation not disclosed in the Registration Statement could
not reasonably be expected to result in a Material Adverse Effect on Camden.
j. Camden has duly and validly authorized capital stock as described in the
Registration Statement. The stockholders of Camden have no preemptive rights
with respect to any shares of capital stock of Camden. There is outstanding no
security or other instrument which by its terms is convertible into or
exchangeable for capital stock of Camden, except as set forth in the
Registration Statement. The outstanding shares of the Common Stock conform to
the description thereof in the Registration Statement and are duly authorized,
validly issued, fully paid and non-assessable. The Shares when issued as
contemplated in the Registration Statement will be duly authorized, validly
issued, fully paid and non-assessable.
k. Berry, Dunn, XxXxxx & Xxxxxx, LLC, who certified the financial statements
included or incorporated by reference in the Registration Statement with respect
to Camden and the Camden Subsidiaries, are independent public accountants within
the meaning of the Securities Act and the Rules and Regulations.
l. (i) The consolidated financial statements and schedules of Camden
and the Subsidiaries, including the notes thereto, included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of Camden and the Camden Subsidiaries as of the respective
dates thereof and the consolidated results of operations and statements of cash
flows for the respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
5
(ii) Since September 30, 1999, there has not been any condition,
event, change or occurrence that individually, or in the aggregate, would result
in a Material Adverse Effect on Camden.
m. The pro forma combined condensed financial statements for Camden and the
Camden Subsidiaries and KSB and its subsidiaries (the "KSB Subsidiaries")
incorporated by reference in the Registration Statement comply in form in all
material respects with the applicable accounting requirements of Rule 11-02 of
the Rules and Regulations and the pro forma adjustments to the historical
amounts in the compilation of those statements comply with such accounting
requirements and are reasonable. The selected and summary pro forma combined
condensed financial data for Camden and the Camden Subsidiaries and KSB and the
KSB Subsidiaries incorporated by reference in the Registration Statement fairly
state in all material respects the information shown therein and were compiled
on a basis consistent with that of the financial statements in the Registration
Statement.
n. Neither Camden nor any of the Camden Subsidiaries is in violation of its
certificate of incorporation, charter or bylaws or in default in the performance
or observance of any obligation, agreement, covenant, or condition contained in
any contract, lease, agreement, license, permit, mortgage, note, indenture or
other instrument to which Camden or any of the Camden Subsidiaries is a party or
by which it or its properties may be bound, except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not individually or in
the aggregate result in a Material Adverse Effect on Camden.
o. Camden and the Camden Subsidiaries have obtained all material licenses,
permits, franchises, easements, consents, and other governmental authorizations
("Permits") necessary to the ownership, leasing and operation of their
properties or to the conduct of their businesses, except for such Permits the
failure of which to obtain would not individually or in the aggregate result in
a Material Adverse Effect on Camden. All such Permits are in full force and
effect and each of Camden and the Camden Subsidiaries is in all material
respects complying therewith, except to the extent as would not individually or
in the aggregate result in a Material Adverse Effect on Camden; and, except as
disclosed in the Registration Statement, neither Camden nor any of the Camden
Subsidiaries has received notice of any proceeding or action relating to the
revocation or modification of any such Permit or other governmental
authorization which, if the subject of an unfavorable decision, ruling or
finding, would individually or in the aggregate, result in a Material Adverse
Effect on Camden.
p. Camden has not taken and will not take, directly or indirectly, any action
designed to or which would reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock, and Camden is
not aware of any such action taken or to be taken by affiliates of Camden.
q. Camden and the Camden Subsidiaries are conducting their businesses in
compliance in all material respects with all applicable laws, rules,
regulations, decisions, directives and orders (including, without limitation,
Section 13(b)(2) of the Exchange Act and all regulations, decisions, directives
and orders of the FDIC and the Office of the Comptroller of the Currency (the
"OCC")).
6
r. There are no holders of securities of Camden who have the right to request
Camden to register securities held by them under the Securities Act.
s. There are no contracts or other documents required to be described in the
Registration Statement by the Securities Act or by the Rules and Regulations
that have not been described as required.
t. No labor dispute with the employees of Camden or the Camden Subsidiaries
exists or, to the knowledge of Camden, is imminent, and Camden is not aware of
any existing or imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect on Camden.
u. Camden and the Camden Subsidiaries have good and marketable title to all
real property owned by Camden and the Camden Subsidiaries (other than foreclosed
real estate) and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as do not, singly or in the
aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by Camden or the
Camden Subsidiaries; and all of the leases and subleases material to the
business of Camden and the Camden Subsidiaries, considered as one enterprise,
and under which Camden or the Camden Subsidiaries holds properties described in
the Registration Statement, are in full force and effect, and neither Camden nor
the Camden Subsidiaries has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of Camden or the Camden
Subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of Camden or the Camden Subsidiaries to the continued
possession of the leased or subleased premises under any such lease or sublease.
Any certificate signed by any officer of Camden and delivered to the
Agent or to counsel for the Agent shall be deemed a representation and warranty
by Camden to the Agent as to the matters covered thereby.
4. Additional Covenants. Camden covenants and agrees with the Agent that:
--------------------
a. Camden, as promptly as possible, shall furnish to the Agent, without charge,
such number of copies of the Registration Statement and Prospectus and any
amendments and supplements thereto and documents incorporated by reference
therein as the Agent may reasonably request.
b. Camden shall promptly notify the Agent, and confirm such notice in writing
prior to the completion of the placement of the Shares by the Agent as evidenced
by a notice in writing from the Agent to Camden of any Material Adverse Effect
on Camden that (A) makes any statement in the Registration Statement false or
misleading or (B) is not disclosed in the Registration Statement. In such event
or if during such time any event shall occur as a result of which it is
necessary, in the reasonable opinion of Camden, the Agent upon advice of counsel
or Camden upon advice of counsel, to amend or supplement the Registration
Statement in order that the Registration Statement not include any untrue
statement of a material fact or omit to state
7
a material fact necessary in order to make the statements therein not misleading
in the light of the circumstances then existing, Camden shall forthwith amend or
supplement the Registration Statement by preparing and furnishing to the Agent
an amendment or amendments of, or a supplement or supplements to, the
Registration Statement (in form and substance satisfactory in the reasonable
opinion of counsel for the Agent) so that as so amended or supplemented, the
Registration Statement shall not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is delivered
to a subsequent purchaser, not misleading.
c. Camden shall advise the Agent promptly of any proposal to amend or
supplement the Registration Statement and will not effect such amendment or
supplement without the consent of the Agent, which consent shall not be
unreasonably withheld. Neither the consent of the Agent nor the Agent's delivery
of any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
d. If, prior to the Closing Date, any event shall occur as a result of which,
in the reasonable judgment of Camden or in the reasonable judgment of the Agent
in consultation with counsel to the Agent, it becomes necessary to amend or
supplement the Registration Statement in order to make the statements therein,
in light of the circumstances existing at the time the Registration Statement is
delivered to a purchaser, not misleading, or, if it is necessary at any time to
amend or supplement the Registration Statement to comply with any law, Camden
promptly shall prepare an appropriate amendment or supplement to the
Registration Statement so that the Registration Statement as so amended or
supplemented will not, in light of the circumstances when it is so delivered, be
misleading, or so that the Registration Statement shall comply with law.
e. Camden shall cooperate with the Agent in endeavoring to qualify the Shares
for sale under the securities laws of such jurisdictions as it may reasonably
have designated in writing and will make such applications, file such documents,
and furnish such information as may be reasonably required for that purpose,
provided Camden shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where it is not
now so qualified or required to file such a consent. Camden shall, from time to
time, file such statements, reports, and other documents as are or may be
required to continue such qualifications in effect for so long a period as the
Agent may reasonably request to complete the distribution of the Shares. Camden
shall notify the Agent immediately of the suspension of qualification of the
Shares or the threat thereof in any jurisdiction.
f. Camden authorizes the Agent to use the Registration Statement, as it may at
any time have been amended or supplemented, in connection with the offer and
sale of the Shares, subject to the terms and conditions of this Agreement.
g. The shares of Common Stock will be included for listing on the American
Stock Exchange.
h. Camden shall use all reasonable efforts to comply with, or cause to be
complied with, the conditions precedent to the several obligations of the Agent
specified in Section 5 hereof.
8
5. Conditions of Agent's Obligations. Camden and the Agent agree that all
---------------------------------
obligations of the Agent hereunder shall be subject to the accuracy of and
compliance with, in all material respects, as of the date hereof and of the
Closing Date, the representations and warranties of Camden contained herein, to
the performance by Camden of its obligations hereunder, and to the following
additional conditions:
a. The Agent shall not have stated in writing to Camden prior to the Closing
Date that, in the Agent's opinion, the Registration Statement or any amendment
or supplement thereto contains any untrue statements of fact that are material
or omits to state any facts that are required to be stated therein or are
necessary to make the statements therein not misleading.
b. On the Closing Date, there shall have been furnished to the Agent the
opinion of Rendle X. Xxxxx, Esq., general counsel for Camden, dated the Closing
Date to the effect that:
(1) Camden is a corporation duly organized and validly existing under the laws
of the State of Maine. Camden is a registered bank holding company.
(2) Camden National Bank is a national bank duly organized and validly existing
under the laws of the United States. Camden National Bank has the corporate
power and authority to carry on its business and operations as described in
the Registration Statement. All of the outstanding shares of capital stock
of Camden National Bank (A) are duly authorized and are validly issued, (B)
are fully paid and non-assessable, and (C) to such counsel's knowledge, are
directly owned by Camden free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equities.
(3) The outstanding shares of the Common Stock are duly authorized, validly
issued, fully paid and non-assessable. Assuming the pertinent provisions of
the Securities Act and such other federal and state securities laws as may
be applicable have been complied with, the Shares, when delivered against
payment of the consideration set forth in this Agreement in accordance with
this Agreement, will be duly authorized, validly issued, fully paid and
non-assessable and will not have been issued in violation of or subject to
any preemptive rights.
(4) To such counsel's knowledge, except as disclosed in the Registration
Statement, there is not now pending or threatened any action, suit or
proceeding to which Camden or the Camden Subsidiaries is a party before or
by any court or governmental agency or body which would reasonably be
expected to result in a Material Adverse Effect on Camden.
(5) The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default (or an event which with notice or
lapse of time or both, would constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
properties or assets of Camden or the Camden Subsidiaries under or pursuant
to, the respective certificates of
9
incorporation, charters or bylaws of Camden and the Camden Subsidiaries or,
to such counsel's knowledge, any statute, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument to which Camden or
any Camden Subsidiary is a party or by which Camden or any Camden
Subsidiary is bound or to which any of the properties or assets of Camden
or any Camden Subsidiary is subject, or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over Camden or
the Camden Subsidiaries or their properties, except, in each case, to such
extent as does not have a Material Adverse Effect on Camden.
(6) To such counsel's knowledge, the activities of the subsidiaries of Camden
as described in the Registration Statement are not prohibited by any
applicable law or governmental regulation, except to such extent as does
not have a Material Adverse Effect on Camden.
(7) Camden has all requisite corporate power and authority to execute, deliver
and perform this Agreement. The distribution of the Registration Statement
and the execution, delivery and performance of this Agreement have been
duly authorized by the Board of Directors of Camden. This Agreement has
been duly executed and delivered by Camden.
(8) To such counsel's knowledge, no authorization, approval or consent of any
court or governmental authority or agency is required in connection with
the sale of the Shares, except such as may be required under the Securities
Act or the Rules and Regulations or as may be required under state
securities laws.
In rendering such opinion such counsel may (A) state that their
opinion is limited to matters governed by the corporate laws of the State of
Maine and the federal banking and securities laws of the United States of
America, (B) rely as to matters of fact, to the extent such counsel deems
reasonable, upon certificates of officers of Camden or Camden National Bank, as
appropriate, provided that the extent of such reliance is specified in such
opinion, and (C) with respect to the opinions expressed in paragraph (1) and the
first sentence of paragraph (2) above, rely solely on certificates or telegrams
or other confirmations from public officials.
Furthermore, at the Closing Xxxxxxx, Procter & Xxxx LLP, counsel to
Camden, shall furnish its opinion to the Agent, dated the Closing Date, to the
effect that as of the date (i) the Registration Statement was effective, the
Registration Statement appeared on its face to comply with the Securities Act
Rules and Regulations, and (ii) the Prospectus was first distributed, the
documents incorporated by reference therein appeared on their face to be
responsive in all material respects with the requirements of the Exchange Act
and the applicable Exchange Act Rules and Regulations, except that such counsel
need express no opinion as to the financial statements, notes to financial
statements, pro forma information, schedules and other financial, statistical
and accounting data included in or excluded from any such document or as to the
exhibits to any such document, and such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the statements made
or incorporated by reference therein. Furthermore, at the Closing such counsel
shall state that it has participated in conferences with officers and
representatives of Camden and Camden National Bank, counsel for the Agent,
representatives of the independent accountants of Camden and Camden National
10
Bank, at which the contents of the Registration Statement and related matters
were discussed and, although such counsel does not pass upon, and does not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, on the basis of the
foregoing, no facts have come to such counsel's attention that have led such
counsel to believe either that the Registration Statement and any amendment or
supplement thereto, as of its date and the Closing Date, contained any untrue
statements of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that such
counsel need express no opinion or belief with respect to the financial
statements, notes to financial statements, pro forma information, schedules and
other financial, statistical and accounting information included therein or
excluded therefrom or as to the exhibits to any such document.
c. The Agent shall have received on and as of the Closing Date from Pitney,
Xxxxxx, Xxxx & Xxxxx, counsel for the Agent, such opinion or opinions, dated the
Closing Date with respect to the incorporation of Camden, the validity of the
Shares, the Registration Statement and such other related matters as the Agent
may require and Camden and KSB shall have furnished to such counsel documents as
they reasonably request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, such counsel may rely as to all matters
governed other than by federal laws on the opinions of counsel referred to in
paragraph (b) of this Section 5.
d. The Agent shall have received a certificate of Camden, dated the Closing
Date and signed by its Chairman or the President and the Chief Financial
Officer, stating that: (1) neither the Registration Statement nor any amendment
thereto contains any untrue statement of a material fact or omits to state any
material fact that is required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; (2) all representations, warranties, covenants and statements
made herein by such party are true and correct in all material respects at the
Closing Date with the same effect as if made on and as of the Closing Date, and
all agreements and conditions herein to be performed or satisfied by such party
on or prior to the Closing Date have been duly performed or satisfied in all
material respects; (3) no Material Adverse Effect shall have occurred with
respect to Camden; and (4) no stop order suspending the distribution of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending, or, to the knowledge of the respective signers
thereof, are contemplated under the Securities Act.
e. Camden shall have furnished to the Agent at the Closing Date such other
certificates and other evidence as the Agent or Pitney, Xxxxxx, Xxxx & Xxxxx may
have reasonably requested as to the accuracy, on and as of the Closing Date, of
the representations and warranties of Camden herein as to the performance by
Camden of its obligations hereunder and as to the fulfillment of the conditions
contained in this Section 5.
If any of the conditions specified above in this Section 5 shall not
have been satisfied at or prior to the Closing Date or waived by the Agent in
writing, this Agreement may be terminated by the Agent on notice to Camden.
11
6. Indemnification, Contribution and Limit on Liability. Camden agrees that it
----------------------------------------------------
shall indemnify and hold harmless the Agent and its affiliates, and its and
their respective directors, officers, employees, and controlling persons (the
Agent and each such person being an "Indemnified Party") from and against any
and all losses, claims, damages and liabilities, joint or several, as incurred,
to which such Indemnified Party may become subject under any applicable United
States federal or state law, or otherwise, and related to or arising out of (a)
any untrue statement or alleged untrue statement of a material fact contained in
any documents, including without limitation the Registration Statement and the
documents incorporated therein by reference (as supplemented and amended from
time-to-time), or the omission or the alleged omission to state therein a
material fact necessary in order to make the statements therein not misleading,
in the light of the circumstances under which they were made, or (b) the
engagement of the Agent pursuant to, and the performance by the Agent of the
services contemplated by, this Agreement, provided, however, that the foregoing
-----------------
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of an Indemnified Party, if a copy of the Prospectus (as then amended or
supplemented if Camden shall have furnished any amendment or supplements
thereto) was not sent or given by or on behalf of the Agent to such person, if
such is required by law, at or prior to the written confirmation of the sale of
the Shares to such person and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or liability
and the foregoing indemnity shall not apply with respect to any information
supplied in writing by the Agent for inclusion under the heading "Plan of
Distribution". Camden also agrees to indemnify and hold harmless any
Indemnified Party against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission provided that any such settlement is effected with the
written consent of Camden which consent shall not be unreasonably withheld.
Camden also agrees to reimburse any Indemnified Party for all reasonable
expenses (including reasonable counsel fees and expenses) as they are incurred
in connection with the investigation of, preparation for or defense of any
pending or threatened claim or any action or proceeding arising therefrom,
whether or not such Indemnified Party is a party and whether or not such claim,
action or proceeding is initiated or brought by or on behalf of Camden. An
indemnifying party may participate at its own expense in the defense of any such
action. Camden also agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to Camden or its
security holders or creditors related to or arising out of the engagement of the
Agent pursuant to, or the performance by the Agent of the services contemplated
by, this Agreement except to the extent that any loss, claim, damage or
liability is found in a final judgment by a court to have resulted from the
Agent's willful misconduct or gross negligence.
The Agent agrees to indemnify and hold harmless Camden, its officers,
directors, and employees and each person, if any, who controls Camden within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, to the same extent as the foregoing indemnity from Camden to the
Indemnified Parties, but only with respect to (A) statements or omissions, if
any, made in the Registration Statement or any amendment or supplement thereof,
to a purchaser of the Shares in reliance upon, and in conformity with,
information furnished in writing to Camden with respect to the Agent by or on
behalf of the Agent expressly for use in the Registration Statement or any
amendment or supplement thereof under the heading "Plan of
12
Distribution", (B) any liability of Camden that results from the distribution by
the Agent to the Purchasers or prospective purchasers of written information
related to Camden other than the Prospectus and the information incorporated by
reference into the Registration Statement, or (C) any liability of Camden found
in a final judgment by a court to have resulted from gross negligence or willful
misconduct of the Agent. Provided, however, that, to the extent permitted by
-------- -------
applicable law, in no event shall the Agent and its affiliates, and its and
their respective directors, officers, employees and controlling persons be
required to contribute with respect to those losses, claims, damages and
liabilities related to or arising out of the matters referred to in clauses (A)
and (C) above, an aggregate amount in excess of the aggregate Fee (as defined
below) actually paid to the Agent under this Agreement.
If the indemnification provided for in this Agreement is for any
reason held unenforceable, Camden agrees to contribute to the losses, claims,
damages and liabilities, as incurred, for which such indemnification is held
unenforceable in such proportion as is appropriate to reflect benefits to Camden
on the one hand, and the Agent, on the other hand, of the placement of the
Shares as contemplated (whether or not the placement is consummated); 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. Camden agrees that for the purposes of this paragraph the
relative benefits to Camden and the Agent of the placement of the Shares as
contemplated shall be deemed to be in the same proportion that the total value
of the Shares sold or contemplated to be sold by Camden as a result or in
connection with the proposed Stock Offering bears to the Fee (as defined below)
paid or to be paid to the Agent under this Agreement; provided, however, that,
to the extent permitted by applicable law, in no event shall the Indemnified
Parties be required to contribute an aggregate amount in excess of the aggregate
Fee (as defined below) actually paid to the Agent under this Agreement.
7. Representations and Agreements to Survive Delivery. All representations,
--------------------------------------------------
warranties, and agreements of Camden contained herein or in certificates
delivered pursuant hereto shall remain operative and in full force and effect
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of the Agent or any controlling person,
Camden or any of its officers, directors or any controlling persons and shall
survive the Closing Date.
8. Termination. This Agreement and all of the Agent's obligations hereunder may
-----------
be terminated by the Agent for any reason upon giving written notice thereof to
Camden; provided, however, that in the event that Camden does not perform any
obligation under this Agreement or any representation and warranty hereunder is
incomplete or inaccurate in any material respect, this Agreement and all of the
Agent's obligations hereunder may be immediately terminated by the Agent by
notice thereof to Camden, in which case Camden shall owe the Agent the Fee if
Agent submitted signed, bona fide Purchase Agreements for all 125,000 Shares and
all Agent's expenses through the date of termination. This Agreement may be
terminated by Camden at any time, upon delivery of written notice to the Agent;
provided, however, that if the Agreement is terminated by Camden prior to
-----------------
December 15, 1999, or on any date after the Agent provided Camden with signed,
bona fide Purchase Agreements for all the 125,000 Shares, Camden will be liable
to the Agent for the full amount of $50,000 and all expenses incurred through
the date of termination and provided further, that if the Agreement is
13
terminated after December 15, 1999 and before Agent provided Camden with signed
bona fide Purchase Agreements for all 125,000 Shares, Camden shall be liable
only for expenses actually incurred by the Agent through the date of such
termination. Notwithstanding any termination of this Agreement as provided
herein, there shall be no liability of any party to any other party, except as
otherwise provided in Section 9 herein relating to the payment of Fees and
expenses, with it being further understood that the Sections relating to
indemnification, limitations on the liability of Indemnified Parties,
contribution, settlements, choice of law shall survive any such termination.
9. Fees and Expenses.
-----------------
a. Camden agrees to pay the Agent a fee (the "Fee") in an amount equal to
$50,000 with respect to the sale of the Shares pursuant to the Registration
Statement.
b. All payments due hereunder, including the expenses provided for in paragraph
d, shall be due and payable on the effective date of the Share purchase under
the Purchase Agreement. All payments, whether or not made at a formal closing,
shall be made in cash or by certified or official bank check, or by wire
transfer in immediately available funds.
c. Camden shall bear all of its expenses in connection with the offering and
sale of the Shares including, without limitation, printing expenses, legal and
accounting fees, expenses incurred in connection with "Blue Sky" filings, state
and federal filing fees, and advertising, investor presentation and other
expenses.
d. Camden shall reimburse the Agent for its out-of-pocket expenses and
reasonable legal fees and associated expenses, provided, however, that such fees
-------- -------
shall not exceed $10,000, exclusive of "Blue Sky" work, without the prior
consent of Camden.
e. The Agent will not be responsible for any fees or commissions payable to
financial or other advisors utilized or retained by Camden, KSB or by any
offeree of the Shares.
10. Notice. All notices or communications hereunder, except as herein otherwise
------
specifically provided, shall be in writing and (i) if sent to the Agent, shall
be mailed, delivered, or sent by facsimile transmission and confirmed to Xxxx
Xxxx & Co., Inc. at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Senior Vice President, or (ii) if sent to Camden,
shall be mailed, delivered, or sent by facsimile transmission and confirmed to
Camden National Corporation at Xxx Xxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention:
Xxxxxx X. Xxxxxx, President and Chief Executive Officer.
11. Parties. This Agreement incorporates the entire understanding of the
-------
parties with respect to this engagement of the Agent by Camden, and supersedes
all previous agreements regarding such engagement, should they exist.
12. Counterparts. This Agreement may be executed by any one or more of the
------------
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same original.
14
13. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York without regard to the conflict
of law principles thereof.
14. Writing Required to Waive, Amend or Modify. No waiver, amendment or other
------------------------------------------
modification of this Agreement shall be effective unless in writing and signed
by each party to be bound thereby.
15. Survival of Certain Provisions. The representations, warranties,
-------------------------------
indemnities, and agreements of Camden and its officers or representatives shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of Camden or the Agent or any affiliates or controlling
person, and shall survive the consummation of the Stock Offering.
16. Consent to Jurisdiction and Waiver of Trial by Jury. Camden hereby
---------------------------------------------------
consents to personal jurisdiction and service and venue in any court in which a
claim subject to this Agreement is brought against the Agent or any other
Indemnified Party.
Please confirm that the foregoing terms correctly set forth our
agreement by signing and returning to the Agent the duplicate copy of this
Agreement enclosed herewith.
Very truly yours,
CAMDEN NATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx
President and
Chief Executive Officer
Confirmed and accepted as of the date
first written above
XXXX, XXXX & CO., INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President
15
ANNEX A
PURCHASE AGREEMENT
Purchase Agreement ("Agreement") made as of December __, 1999 between
Camden National Corporation ("Camden"), a Maine corporation and
_______________________ _________________ (the "Purchaser").
W I T N E S S E T H :
-------------------
WHEREAS, Camden has filed a Registration Statement on Form S-3
(Registration Number 333-89407) for the sale of 125,000 shares of its common
stock, no par value ("Common Stock"); and
WHEREAS, the Purchaser desires to purchase shares of Common Stock (the
"Shares"), and Camden desires to sell the Shares to the Purchaser.
NOW, THEREFORE, in consideration of the premises, and the representations
and warranties herein contained, Camden and Purchaser hereby agree as follows:
1. Purchase and Sale of Shares. The Purchaser hereby purchases from
---------------------------
Camden, and Camden hereby sells to the Purchaser, the _______ Shares at the
purchase price of $______ per Share (the "Purchase Price") effective on the date
hereof, subject to receipt of the Purchase Price on the Closing Date. The
Purchase Price is payable at or prior to 5:00 p.m. on _________________, 1999,
or at such other date as shall be determined by Camden upon two days prior
notice to Purchaser (the "Closing Date") by delivery by Purchaser of a certified
check, or by wire transfer of immediately available funds to an account
designated by Camden, in either case in the full amount of the Purchase Price.
On the Closing Date, after receipt of payment of the Purchase Price, Purchaser
shall receive a certificate representing the Shares from Camden or such other
form as the Purchaser requests in writing within 24 hours from the date of this
Agreement and is acceptable to Camden.
2. Representations by Camden. Camden represents and warrants to the
-------------------------
Purchaser that:
(a) Camden has all requisite corporate power and authority to execute,
deliver and perform this Agreement. The execution, delivery and performance of
this Agreement has been duly authorized by the Board of Directors of Camden.
This Agreement constitutes a legal, valid and binding obligation of Camden
enforceable against Camden in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditors' rights generally and general
principles of equity).
(b) The Purchaser will receive good, valid and marketable title to the
Shares purchased hereunder, free and clear of all liens, claims, restrictions
and encumbrances, except for those, if any, resulting from the Purchaser's own
acts.
3. Representations by the Purchaser. The Purchaser represents and
--------------------------------
warrants to Camden that:
(a) This Agreement has been duly authorized, executed and delivered by
Purchaser and constitutes a valid and binding agreement of the Purchaser
enforceable in accordance with its terms.
(b) If the Purchaser is a corporation, the Purchaser is a corporation
duly incorporated, validly existing and in good standing under the laws of
_____________________, with corporate power and authority to perform its
obligations under this Agreement.
(c) If the Purchaser is a partnership or limited liability company,
the Purchaser is a ___________________, duly organized, validly existing and in
good standing under the laws of ___________________, with full power and
authority to perform its obligations under this Agreement.
(d) No state, federal or foreign regulatory approvals, permits,
licenses or consents or other contractual or legal obligations are required in
order for the Purchaser to enter into this Agreement or purchase the Shares.
(e) Purchaser represents that Purchaser has received and reviewed a
copy of the Preliminary Prospectus for the shares, dated October 20, 1999.
(f) Purchaser further represents that Purchaser is not an officer,
director, employee or "affiliate" (as defined in Rule 144 under the Securities
Act) of Camden or KSB Bancorp, Inc. ("KSB") or a shareholder of KSB or Camden
(other than by virtue of the purchase hereunder) or acting on behalf of Camden
or KSB.
(g) Purchaser further represents that Purchaser has not sold shares of
Camden at any time during the thirty day period prior to the date hereof.
(h) Purchaser's federal tax identification number is _______________.
5. Miscellaneous.
-------------
(a) This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof. This Agreement may only be amended by
a written instrument duly executed by each of the parties hereto.
(b) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by the Purchaser (whether by operation
of law or otherwise) without the prior written consent of Camden. Subject to the
preceding sentence, this Agreement shall be binding upon the parties hereto and
their respective successors and assigns.
(c) All fees and expenses incurred by either party in connection with
this Agreement will be borne by such party.
(d) This Agreement shall be governed by the laws of the State of New
York, without giving effect to the principles of conflicts of laws thereof.
2
(e) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
(f) The headings of Paragraphs in this Agreement are for convenience
of reference only and shall not, nor shall they be construed to, qualify or in
any other respect affect the meaning of the text.
(g) This Agreement shall not be binding until executed and accepted by
Camden, which acceptance will not require notice to the Purchaser.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement on the date first above written.
CAMDEN NATIONAL CORPORATION
By: ____________________________
Name: ________________________
Title: __________________________
Name of Purchaser: _______________
(Print)
By: ____________________________
Name: ___________________(Print)
Title: _____________________(Print)
3
