Exhibit 1.1
[FORM OF UNDERWRITING AGREEMENT]
AMERICASBANK CORP.
Common Stock
($0.01 par value)
UNDERWRITING AND ADVISORY AGREEMENT
________ __, 2004
XxXxxxxx & Company, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Gentlemen:
AmericasBank Corp., a corporation organized under Maryland law (the
"Company"), proposes to employ you ("you" or the "Underwriter") to advise the
Company in the structure of subscription and public offerings of the Company's
Common Stock, par value $0.01 per share (the "Common Stock"), and, as agent of
the Company, to assist in the sale on a best efforts basis of (i) up to
2,500,000 shares of the Company's Common Stock in the public offering (the
"Public Offering"), less (ii) any shares of Common Stock that are subscribed for
by 5:00 P.M. Eastern Time, ________ __, 2004 in the Company's subscription
offering of 400,000 shares of its Common Stock (the "Subscription Offering"). In
addition, the Company may increase the number of shares to be sold in the Public
Offering by an additional 375,000 shares of Common Stock. The shares of Common
Stock to be issued in the Public Offering are referred to herein as the
"Shares."
You have advised the Company (a) that you are authorized to enter into
this Agreement and (b) that you are willing to sell the Shares on a best efforts
basis as agent for the Company.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the Company
and the Underwriter hereby agree as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form SB-2 (File No. 333-110947) relating to
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Page 2
shares of Common Stock to be sold in the Subscription Offering. Such
registration statement in the form in which it became effective and also in such
form as it may be when any post-effective amendment thereto has or shall become
effective, and the prospectus filed as part of such registration statement and
in the form first filed with the Commission under its Rule 424(b), if any, and
when any supplement thereto is filed with the Commission, will comply in all
material respects with the provisions of the Securities Act and will not contain
at any such times an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements in or omissions from information relating to the Underwriter
on the front cover of such prospectus, under the heading "Common Stock Prices
and Market for Our Common Stock" in the section of such prospectus entitled
"Common Stock Prices and Dividends," under the heading "Determination of
Offering Price" in the section of such prospectus entitled "The Rights
Offering," and in the section of such prospectus entitled "Plan of Distribution"
that were made in reliance upon and conformity with information furnished to the
Company by such Underwriter expressly for use therein.
(b) All offers and sales in connection with the Subscription
Offering comply in all material respects with applicable federal and state
securities laws and are conducted in the manner described in "The Rights
Offering" section of the prospectus in the form filed with the Commission as
part of the registration statement relating to the Subscription Offering or
pursuant to its Rule 424(b), if any, after such registration statement became
effective.
(c) The Company has prepared and filed with the Commission in
accordance with the provisions of the Securities Act, a registration statement
on Form SB-2 (File No. 333- 111918), including a preliminary prospectus,
relating to the Shares to be sold in the Public Offering. Such registration
statement as amended at the time that it becomes effective is referred to
collectively in this Agreement as the "Registration Statement," and the
prospectus in the form filed with the Commission as part of the Registration
Statement or pursuant to its Rule 424(b), if any, after the Registration
Statement becomes effective is referred to collectively as the "Prospectus."
(d) Each preliminary Prospectus that is filed as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto and distributed by the Underwriter or a selected dealer to
potential purchasers complied, when so filed, in all material respects with the
provisions of the Securities Act; except that this representation and warranty
does not apply to statements in or omissions from information relating to the
Underwriter in the last paragraph on the front cover of the Prospectus, under
the heading "Common Stock Prices and Market for Our Common Stock" in the section
of the Prospectus entitled "Common Stock Prices and Dividends" and in the
section of the Prospectus entitled "Underwriting" that were made in reliance
upon and conformity with information furnished to the Company by such
Underwriter expressly for use therein.
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(e) The Registration Statement in the form in which it becomes
effective and also in such form as it may be when any post-effective amendment
thereto shall become effective, and the Prospectus filed as part of such
Registration Statement and in the form first filed with the Commission under its
Rule 424(b), if any, and when any supplement thereto is filed with the
Commission, will comply in all material respects with the provisions of the
Securities Act and will not contain at any such times an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that this
representation and warranty does not apply to statements in or omissions from
information relating to the Underwriter in the last paragraph on the front cover
of the Prospectus, under the heading "Common Stock Prices and Market for Our
Common Stock" in the section of the Prospectus entitled "Common Stock Prices and
Dividends" and in the section of the Prospectus entitled "Underwriting" that
were made in reliance upon and conformity with information furnished to the
Company by the Underwriter expressly for use therein.
(f) The Company has the capitalization set forth in the Prospectus
under the caption "Capitalization." All of the outstanding shares of Common
Stock are duly authorized and validly issued, fully paid and nonassessable and
free of preemptive or similar rights (other than the right of the Company's
existing shareholders to purchase shares in the Subscription Offering). The
shares of Common Stock to be sold in the Subscription Offering and the Shares to
be issued and sold by the Company have been duly authorized, and upon delivery
to the purchasers thereof against payment therefor in accordance with the terms
hereof, will have been validly issued and fully paid and will be nonassessable
and free of preemptive or similar rights; and the Common Stock conforms in all
material respects to the description thereof in the Registration Statement and
the Prospectus (or any amendment or supplement thereto). None of the Company's
issued and outstanding shares of Common Stock was issued in violation of the
Securities Act.
(g) The Company and its wholly owned subsidiary, AmericasBank (the
"Bank"), are duly organized and validly existing and in good standing under
Maryland law. There are no other subsidiaries of the Company and there are no
subsidiaries of the Bank. The Company and the Bank are duly qualified to do
business and are in good standing in all jurisdictions that require such
qualification or in which the failure to qualify in such jurisdictions could
have, in the aggregate, any material adverse effect on the business, condition
(financial or otherwise) or properties of the Company or the Bank. The Company
and the Bank hold all material licenses, certificates, permits and other
authorizations from governmental authorities necessary for the conduct of their
businesses as described in the Prospectus and own, or possess adequate rights to
use, all material rights necessary for the conduct of their business and have
not received any notice of conflict with the asserted rights of others in
respect thereof; and the Company and the Bank have the corporate power and
authority to own their properties and conduct their businesses as described in
the Prospectus. The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended. The deposit
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accounts of the Bank are insured by the Bank Insurance Fund administered by the
Federal Deposit Insurance Corporation up to the maximum amount provided by law,
and no proceedings for the modification, termination or revocation of any such
insurance are pending or, to the knowledge of the Company, threatened.
(h) All of the outstanding shares of capital stock of the Bank are
owned by the Company, have been duly authorized and are validly issued, fully
paid and nonassessable and are owned by the Company free and clear of any lien,
claim, security interest or other encumbrance.
(i) The Company and the Bank have good and marketable title to all
property described in the Prospectus as being owned by them, free and clear of
all liens, claims, security interests or other encumbrances except such as are
described in the Registration Statement and the Prospectus (or any amendment or
supplement thereto or in a document filed as an exhibit to the Registration
Statement) or such as are not material and do not interfere in any material
respect with the use of the property or the conduct of the business of the
Company and the Bank taken as a whole, and the property held under lease by the
Company or the Bank is held by them under valid and enforceable leases with only
such exceptions as in the aggregate are not material and do not interfere in any
material respect with the conduct of the business of the Company and the Bank
taken as a whole; provided that no representation or warranty is made hereby to
the title of the lessor of any such property.
(j) There are no legal or governmental proceedings pending, or to
the knowledge of the Company threatened, required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) that are not described as required, and there is no contract or
document of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
that is not described or filed as required.
(k) Except as described in the Registration Statement, neither the
Company nor the Bank is in violation of its articles of incorporation or bylaws
or in default in any material respect in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which the Company or the Bank is a party or by which its assets
are bound, or, except as described in the Registration Statement and the
Prospectus, in violation of any law, administrative regulation or ruling or
court decree applicable to the Company or the Bank or any of their properties.
Neither the issuance nor the sale of the Shares nor the execution and delivery
of this Agreement nor the performance of the obligations of the Company set
forth herein nor the consummation of the transactions herein contemplated
requires any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except such
as may be required under the Securities Act or other securities laws or Blue Sky
laws or rules of the National Association of Securities Dealers, Inc. (the
"NASD") that may be applicable to the Underwriter) or will conflict with the
articles of
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incorporation or bylaws of the Company or the Bank, or constitute a breach or
default under any agreement, indenture or other instrument to which the Company
or the Bank is a party or by which either of them or their property is bound, or
any law, administrative regulation or ruling or court decree applicable to the
Company or the Bank or any of their properties, which conflict, breach or
default would have a material adverse effect on the business, condition
(financial or otherwise) or property of the Company and the Bank taken as a
whole.
(l) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), the
Company has not incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is
material to the Company and the Bank taken as a whole, and there has not been
any material change in the capital stock, or material increase in the short-term
debt or long-term debt, of the Company or the Bank, or any material adverse
change, or any development involving a prospective material adverse change, in
the condition (financial or otherwise), business, net worth or results of
operations of the Company and the Bank taken as a whole.
(m) Xxxxxx & Company, LLP, who have certified certain of the
financial statements filed with the Commission as part of the Registration
Statement and the Prospectus, have consented in writing to the inclusion of
their report in the Prospectus and are independent public accountants as
required by the Securities Act.
(n) The Company's financial statements, together with related
schedules and notes, forming part of the Registration Statement and the
Prospectus, present fairly the financial position and the results of operations
of the Company and the Bank at the respective dates or for the respective
periods to which they apply; such statements and related notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the financial and statistical information and data set forth in the
Registration Statement and the Prospectus is fairly presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company and the Bank; provided, however, that any interim unaudited financial
statements of the Company included in the Registration Statement and the
Prospectus are subject to normal year-end adjustments and lack footnotes and
other presentation items. The Company and the Bank have no material contingent
obligations that are not disclosed in the Registration Statement and the
Prospectus, as they may be amended or supplemented.
(o) No holders of securities of the Company have rights to the
registration of such securities for sale in the Public Offering.
(p) The Company and the Bank have filed all federal, state and
foreign income tax returns that have been required to be filed and have paid all
taxes indicated by such
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returns and all assessments received by them or any of them to the extent that
such taxes have become due, and are not being contested in good faith.
(q) The Company and the Bank hold all material licenses,
certificates and permits from governmental authorities that are necessary to the
conduct of their businesses; and neither the Company nor the Bank has infringed
any patents, patent rights, trade names, trademarks or copyrights in any manner
material to the business of the Company and the Bank taken as a whole.
(r) The Company and the Bank are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the business in which it is engaged; all policies
of insurance and fidelity or surety bonds insuring the Company and the Bank and
their businesses, assets, employees, officers and directors, if any, are in full
force and effect; the Company and the Bank are in compliance with the terms of
any such policies and instruments in all material respects; and there are no
claims by the Company or the Bank under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause; the Company and the Bank have not been refused any
insurance coverage sought or applied for; and the Company and the Bank have no
reason to believe that they will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue their businesses at a cost that
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of them taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus (exclusive of
any amendment or supplement thereto).
(s) The Company and the Bank maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(t) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
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(u) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company on the other hand, that is required to be described in
the Prospectus that is not so fully and accurately described.
(v) The Company is not and, after giving effect to the offer and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(w) Any statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes to be
reliable and accurate, and the Company has obtained the written consent to the
use of such data from such sources to the extent required.
(x) All employee benefit plans established, maintained or
contributed by the Company and the Bank comply, to the extent they are required
to comply, in all material respects with requirements of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and no such plan incurred or
assumed any "accumulated funding deficiency" within the meaning of Section 302
of ERISA or has incurred or assumed any material liability to the Pension
Benefit Guaranty Corporation.
(y) This Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding obligation of the Company, enforceable
in accordance with its terms.
2. Advisory Fee. The Underwriter has advised and agrees to continue to
advise the Company on the structure, format and manner of consummation of the
Subscription Offering. The Underwriter has further agreed to use its best
efforts in the Public Offering to sell any shares offered by the Company to its
shareholders in the Subscription Offering that are not purchased by the
Company's shareholders. For such services, the Company shall pay the Underwriter
an advisory fee equal to one percent (1%) of the aggregate price of the 400,000
shares that the Company sells to its shareholders in the Subscription Offering.
3. Sale of the Shares. On the basis of the representations, warranties
and covenants herein contained, and subject to the conditions herein set forth,
the Company agrees to issue and sell up to 2,500,000 Shares through a
combination of the Subscription Offering and the Public Offering. The Company
reserves the right to increase the total number of Shares offered by up to
375,000 Shares. All Shares to be offered and sold in the Public Offering shall
be issued and sold through the Underwriter, as agent for the Company, to the
public and the Underwriter agrees to use its best efforts to sell the Shares as
agent for the Company, at the price per share set forth on the cover page of the
Final Prospectus for the Public Offering (the "Public Offering Price"). The
Company agrees to pay the Underwriter a commission ("Selling Commission")
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equal to five percent (5%) of the Public Offering Price of all Shares sold
through the Underwriter in the Public Offering, including Shares that were
offered but not sold in the Subscription Offering (and including Shares sold
through selected dealers). It shall be the Underwriter's responsibility to
compensate any selected dealers out of the commissions that it receives from the
Company. The Underwriter may reject any offer to purchase the Shares made
through the Underwriter or a selected dealer in whole or in part, and any such
rejection shall not be deemed a breach of the Underwriter's agreement contained
herein.
4. Sales by the Underwriter. It is understood that, after the
Registration Statement becomes effective, the Underwriter proposes to sell the
Shares to the public as agent for the Company upon the terms and conditions set
forth in the Prospectus. The escrow procedures established by the Underwriter
shall comply with Commission Rule 15c2-4 promulgated under the Exchange Act. All
purchasers to whom the Underwriter directly sells Shares shall be instructed to
make their check for payment of the Shares payable to "AmericasBank Corp. Public
Offering Escrow Account." In addition, the Underwriter shall comply with Rule
15c2-4. The Underwriter shall transmit all funds that it receives from
purchasers to SunTrust Bank, the escrow agent (the "Escrow Agent") by noon of
the next business day following receipt thereof. Only broker/dealers who are
either (i) members in good standing of the NASD that are registered with the
NASD and maintain net capital pursuant to Rule 15c3-1 promulgated under the
Exchange Act of not less than $25,000 or (ii) dealers with their principal
places of business located outside the United States, its territories and its
possessions and not registered as brokers or dealers under the Exchange Act, who
have agreed not to make any sales within the United States, its territories or
its possessions or to persons who are nationals thereof or residents therein
shall be designated selected dealers by the Underwriter. The Underwriter shall
require all selected dealers to comply with Rule 15c2-4.
5. Payment and Delivery. The Underwriter shall direct the Escrow Agent
to make payment for the Shares sold hereunder by wire transfer. Such payment is
to be made at the offices of AmericasBank Corp., 000 Xxxx Xxxx, Xxxxxx, Xxxxxxxx
00000, at 10:00 a.m. local time, on or about _________ __, 2004, or at such
other time, date and place as you and the Company shall agree upon, such time
and date being herein referred to as the "Closing Date." Unless the transaction
is closed book-entry through The Depository Trust Company and no certificates
are requested, in which case the procedures applicable thereto shall be complied
with, the certificates for the Shares will be delivered in such denominations
and in such registrations as the Underwriter requests in writing not later than
the third (3rd) full business day prior to the Closing Date, and will be made
available for inspection by the Underwriter at least twenty-four (24) hours
prior to the Closing Date. Any such certificates will be delivered by the
Company to its transfer agent, or the Depository Trust Company, as applicable,
by 12:00 p.m. on the day prior to the Closing Date, along with addressed labels
to be used to mail the certificates to the purchasers thereof. The Company shall
direct the Escrow Agent to deliver (i) payment of the portion of the Selling
Commission due to the Underwriter by wire transfer or certified or bank
cashier's check drawn to the order of the Underwriter in next day funds, to the
Underwriter on
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the Closing Date and (ii) payment of the portion of the Selling Commission due
to each selected dealer by wire transfer or certified or bank cashier's check
drawn to the order of such selected dealer in next day funds, to each selected
dealer on the Closing Date.
6. Covenants of the Company. The Company covenants and agrees with the
Underwriter as follows:
(a) The Company will endeavor to cause the Registration Statement to
become effective and will advise you promptly and, if requested by you, will
confirm such advice in writing (i) when the Registration Statement has become
effective and when any amendment thereto thereafter becomes effective, (ii) of
any request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation or contemplation of any
proceeding for such purposes and (iv) within the period of time referred to in
Section 6(e) below, of the happening of any event that makes any statement made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue in any material respect or that requires the making of any
addition to or change in the Registration Statement or the Prospectus (as then
amended or supplemented) to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or of the necessity
to amend or supplement the Prospectus (as then amended or supplemented) to
comply with the Securities Act or any other law. If at any time the Commission
shall issue any stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible time.
(b) The Company will furnish you, without charge, three signed
copies of the Registration Statement as originally filed with the Commission and
of each amendment to it, including financial statements and all exhibits
thereto, and will also furnish to you, such number of conformed copies of the
Registration Statement (without exhibits) as originally filed and of each
amendment thereto as you may reasonably request.
(c) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which you
shall not have been advised previously or to which you shall reasonably object
in writing promptly after being so advised.
(d) Prior to the effective date of the Registration Statement, the
Company has delivered or will deliver to you, without charge, in such quantities
as you have requested or may hereafter reasonably request, copies of each form
of preliminary prospectus. The Company consents to the use, in accordance with
the provisions of the Securities Act and with the securities or Blue Sky laws of
the jurisdictions in which the Shares are offered by the
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Underwriter and by dealers to whom Shares may be sold, prior to the effective
date of the Registration Statement, of each preliminary prospectus so furnished
by the Company.
(e) On the effective date of the Registration Statement and
thereafter from time to time, for such period as in the opinion of counsel for
the Underwriter a prospectus is required by law to be delivered in connection
with sales by an Underwriter or a dealer, the Company will deliver to you and
each dealer through whom Shares may be sold without charge (except as provided
below) as many copies of the Prospectus (and of any amendment or supplement
thereto) as they may reasonably request. The Company consents to the use of such
Prospectus (and of any amendment or supplement thereto) in accordance with the
provisions of the Securities Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the Underwriter and by dealers
through whom Shares may be sold, both in connection with the offering or sale of
the Shares and for such period of time thereafter as the Prospectus is required
by law to be delivered in connection therewith. If during such period of time
any event shall occur that in the judgment of the Company, or in the opinion of
counsel for the Underwriter, requires that a material fact be stated in the
Prospectus (as then amended or supplemented) in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with the Securities Act or any other law, the Company at its own expense
(except as provided below) will forthwith prepare and file with the Commission
an appropriate amendment or supplement thereto, and will furnish to the
Underwriter and each dealer through whom Shares may be sold without charge
(except as provided below), a reasonable number of copies thereof.
(f) The Company will cooperate with you and your counsel in
connection with the registration or qualification of the Shares for offer and
sale by you and by dealers through whom Shares may be sold under the securities
or Blue Sky laws of such jurisdictions as you may reasonably designate and will
file such consents to service of process or other documents as may be necessary
in order to effect such registration or qualification; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
the service of process in suits, other than those arising out of the offer and
sale of the Shares, in any jurisdiction where it is not now so subject.
(g) The Company will file all reports and other information that it
is required to file after the Closing Date pursuant to Section 13 or Section
15(d), as the case may be, of the Exchange Act as necessary to permit the
Underwriter to serve, in its sole discretion, as a market maker with respect to
the Common Stock.
(h) The Company will make generally available to its security
holders an earnings statement, which need not be audited, covering a 12-month
period commencing after the effective date of the Registration Statement and
ending no later than 15 months thereafter, as
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soon as practicable after the end of such period, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and any applicable
regulation.
(i) During the period of five years hereafter, the Company will
furnish to you without charge (i) as soon as available, a copy of each report of
the Company mailed to shareholders or filed with the Commission and (ii) from
time to time such other proper information concerning the business and financial
condition of the Company as you may reasonably request.
7. Costs and Expenses.
(a) The Company will pay all costs and expenses incident to the
performance by it of its obligations hereunder, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits), each preliminary prospectus, the Prospectus and all
amendments and supplements to any of the foregoing, during the period specified
in Section 6(e) above but not exceeding nine months after the date on which the
Shares are first offered to the public, (ii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp tax in connection with the original issuance of the Shares, (iii) the
preparation and delivery by counsel to the underwriter of the preliminary and
supplemental Blue Sky Memoranda (including the reasonable fees and disbursements
of counsel for the Underwriter relating thereto), (iv) the registration or
qualification, if required, of the Shares for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 6(f)
above (including the fees and disbursements of counsel for the Underwriter
relating thereto), (v) the fees and expenses of the Company's accountants and
the fees and expenses of counsel for the Company and the reasonable fees and
expenses of counsel for the Underwriter, (vi) during the period specified in
Section 6(e) above but not exceeding nine months after the date on which the
Shares are first offered to the public, delivery to the Underwriter and dealers
through whom Shares may be sold (including postage, air freight and the expenses
of counting and packaging) of such copies of the Registration Statement, the
Prospectus, each preliminary prospectus and amendments or supplements to the
Registration Statement and the Prospectus as may be requested for use by the
Underwriter or by dealers through whom Shares may be sold in connection with the
offering and sale of the Shares and during such period of time thereafter as the
Prospectus is required, in the judgment of the Company or in the opinion of
counsel for the Underwriter, to be delivered in connection with the offer and
sale of the Shares by you and by dealers, (vii) filing fees with the NASD in
connection with the Public Offering, (viii) the costs of all informational
and/or investor due diligence meetings and (ix) the performance by the Company
of its other obligations under this Agreement. The Underwriter shall pay its own
costs and expenses except as otherwise provided in this Agreement.
(b) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than by notice given by you terminating this Agreement
pursuant to Section 12
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below), or if this Agreement shall be terminated by you
because of any failure or refusal on the part of the Company to comply in any
material respect with the terms, or fulfill in any material respect any of the
conditions, of this Agreement, the Company agrees without further obligation to
reimburse you for all out-of-pocket expenses (including fees and expenses of
your counsel, as provided in Section 7(a) above) reasonably and actually
incurred in connection herewith.
8. Conditions to the Obligations of the Underwriter. Your obligations
hereunder are subject to the following conditions:
(a) That the Registration Statement shall have become effective not
later than 5:00 p.m., on the date hereof, or at such later date and time as
shall be consented to by you.
(b) That subsequent to the effective date of the Registration
Statement, there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the condition
(financial or otherwise), business, properties, net worth or results of
operations of the Company or the Bank not contemplated by the Prospectus (or any
amendment or supplement thereto) that, in your opinion, would materially
adversely affect the market for the Shares.
(c) That you shall have received on the Closing Date an opinion
dated the Closing Date, from Ober, Kaler, Xxxxxx & Xxxxxxx, a Professional
Corporation, counsel to the Company, to the effect that:
(i) the Company and the Bank have been duly organized, are
validly existing under the laws of their respective state or other jurisdiction
of incorporation or organization, are in good standing under applicable law and
are duly qualified to do business and are in good standing in all jurisdictions
that require such qualification or in which the failure to qualify in such
jurisdictions could, in the aggregate, have any material adverse effect on the
business, condition or properties of the Company or the Bank;
(ii) all of the shares of Common Stock of the Company
outstanding prior to the issuance of the Shares to be issued and sold by the
Company hereunder have been duly authorized and validly issued and are fully
paid and nonassessable;
(iii) all of the outstanding shares of capital stock of the Bank
are owned by the Company, have been duly authorized and validly issued, and are
fully paid and nonassessable and, to the knowledge of such counsel, are owned by
the Company free and clear of any lien, claim, security interest or other
encumbrance, except as otherwise described in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) or such as are not material;
XxXxxxxx & Company, Inc.
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(iv) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and when issued and delivered in accordance with the
terms of this Agreement, will have been validly issued and will be fully paid
and nonassessable, and the issuance of such Shares is not subject to any
preemptive rights or, to the knowledge of such counsel, similar rights, other
than the right of the Company's existing shareholders to purchase one share for
each two shares held of record on December 22, 2003, in the Subscription
Offering;
(v) Except as described in the Prospectus, there are no warrants
or options to purchase any securities of the Company; to the knowledge of such
counsel, the offering or sale of the Shares as contemplated by this Agreement
does not give rise to any rights for the offering or sale of other shares of
capital stock of the Company;
(vi) the certificates for the Shares are in proper legal form;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and delivery
by the Underwriter) is a valid and binding agreement of the Company enforceable
in accordance with its terms, except in all cases as rights of indemnity or
contribution hereunder may be limited under applicable law and except as the
enforceability hereof may be limited by bankruptcy, receivership, moratorium,
conservatorship, reorganization or other laws of general application affecting
the rights of creditors generally or general equitable principles;
(viii) neither the Company nor the Bank, to the knowledge of
such counsel, is in violation of its articles of incorporation or bylaws, in
default in any material respect in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or other evidence of
indebtedness or in any agreement, indenture or other instrument known to such
counsel that is material to the conduct of the business of the Company and the
Bank taken as a whole, or in violation of any law, administrative regulation or
ruling or court decree applicable to the Company or the Bank or any of their
respective properties, and the execution, delivery and performance of this
Agreement, compliance by the Company with all provisions hereof and the
consummation of the transactions contemplated hereby will not conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the articles of incorporation or bylaws of the Company or the Bank or, to the
knowledge of such counsel, any material agreement, indenture or other instrument
to which the Company or the Bank is a party or by which either of them is bound,
or (assuming compliance with the Securities Act and other securities or Blue Sky
laws) violate any law, administrative regulation or ruling (except as the
indemnification or contribution provisions in this Agreement may be limited by
applicable law) or, to the knowledge of such counsel, court decree applicable to
the Company or the Bank or any of their respective properties;
XxXxxxxx & Company, Inc.
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(ix) the Registration Statement has been declared effective by
the Commission under the Securities Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for such purpose have
been instituted or are pending or are contemplated or threatened by the
Commission;
(x) except for the order of the Commission making the
Registration Statement effective and any permits and similar authorizations
required under other securities or Blue Sky laws, no consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body is required for the consummation of the sale
of the Shares to the purchasers through the Underwriter as contemplated by this
Agreement;
(xi) the Company is not and, after giving effect to the offer
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(xii) the statements in the Prospectus under
"Business--Regulatory Matters", "Business--Legal Proceedings", "Description of
Capital Stock" and "Supervision and Regulation" insofar as such statements
constitute a summary of the documents, legal matters or proceedings referred to
therein, fairly and accurately present in all material respects the information
with respect to such documents, legal matters or proceedings;
(xiii) to the knowledge of such counsel, there are no pending or
threatened legal or governmental proceedings to which the Company or the Bank is
a party or of which any property of the Company or the Bank is the subject,
which, if determined adversely to the Company or the Bank, would individually or
in the aggregate have a material adverse effect on the financial position or
results of operations of the Company and the Bank taken as a whole.
Subject to its customary practices and limitations relating to the
scope of such counsel's participation in the preparation of the Prospectus and
its investigation or verification of information contained therein, Ober, Kaler,
Xxxxxx & Xxxxxxx, a Professional Corporation also shall state that nothing has
come to its attention to cause it to believe that the Prospectus (except for
financial statements, schedules and other financial data included therein, as to
which such counsel need not express any belief) contained any untrue statement
of any material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus and any amendment or supplement thereto (except as aforesaid) as of
their respective dates contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
XxXxxxxx & Company, Inc.
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In rendering the opinions required by this Section 8(c), such counsel
may rely, as to matters of fact, upon certificates and representations of
officers of the Company and the Bank and on certificates of public officials.
(d) That you shall have received on the Closing Date the opinion of
Xxxxxxxx Xxxxxx, as special counsel to you, dated the Closing Date, covering
such matters as you may have reasonably requested.
(e) That you shall have received letters addressed to you and dated
the date hereof and the Closing Date from Xxxxxx & Company, LLP, independent
public accountants, substantially in the form heretofore approved by you.
(f) That (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any material change in the capital stock of the Company nor any
material increase in long-term debt of the Company or the Bank from that set
forth or contemplated in the Registration Statement and the Prospectus (or any
amendment or supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), any material adverse change in the condition
(financial or otherwise), business, properties, net worth or results of
operations of the Company and the Bank, taken as a whole; (iv) neither the
Company nor the Bank shall have any material liability or obligation, direct or
contingent, other than those liabilities or obligations reflected in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) or incurred or arising in the ordinary course of business; and (v) all
of the representations and warranties of the Company contained in this Agreement
shall be true and correct in all material respects on and as of the date hereof
and the Closing Date as if made on and as of such date, and you shall have
received a certificate, dated the Closing Date and signed by the principal
executive officer and the principal financial officer of the Company, to the
effect set forth in this Section 8(f) and Section 8(g) below.
(g) That the Company shall not have failed at or prior to the
Closing Date to have performed or complied in any material respect with any of
the agreements herein contained and required to be performed or complied with by
it at or prior to the Closing Date.
(h) The Company shall have furnished you such further certificates
and documents confirming the representations and warranties contained herein and
related matters as you may reasonably have requested.
XxXxxxxx & Company, Inc.
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9. Conditions to the Obligations of the Company. The obligations of
the Company to sell and deliver the portion of the Shares required to be
delivered as and when specified in this Agreement are subject to the conditions
that at or before 5:00 p.m., on the date of this Agreement, or such later time
and date to which the Company and the Underwriter may from time to time consent,
the Registration Statement shall have become effective; at the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and be then in effect or proceedings therefor initiated or
threatened; and the Escrow Agent shall have tendered to the Company payment for
the Shares.
10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages, liabilities or expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement based upon information relating to the Underwriter in the last
paragraph on the front cover of the Prospectus, under the heading "Common Stock
Prices and Market for Our Common Stock" in the section of the Prospectus
entitled "Common Stock Prices and Dividends" and in the section of the
Prospectus entitled "Underwriting" that was made in reliance upon and conformity
with information furnished to the Company by or on behalf of the Underwriter
expressly for use in connection therewith; provided that the indemnification
contained in this paragraph with respect to any preliminary prospectus shall not
inure to the benefit of the Underwriter (or any person controlling the
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by the Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person with or
prior to the written confirmation of the sale involved (or any supplement to the
Prospectus at the time of such confirmation was not so delivered or sent) and
the statement or omission giving rise to such loss, claim, damage, liability or
expense was contained in the preliminary prospectus and corrected in the
Prospectus (or any supplement thereto at the time such confirmation was
delivered or sent).
(b) If any action or claim shall be brought against the Underwriter
or any person controlling the Underwriter, in respect of which indemnity may be
sought against the Company in accordance with Section 10(a) above, the
Underwriter shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all reasonable fees and expenses. The Underwriter or any such person controlling
the Underwriter shall have the right to employ separate counsel in
XxXxxxxx & Company, Inc.
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any such action and participate in the defense thereof, but the reasonable fees
and expenses of such counsel shall be at the expense of the Underwriter or such
controlling person unless (i) the Company has agreed in writing to pay such fees
and expenses, (ii) the Company has failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
party) include both the Underwriter or controlling person and the Company and
representations of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them (in which case, if such
Underwriter or controlling person notifies the Company in writing that it elects
to employ separate counsel at the expense of the Company, the Company shall not
have the right to assume the defense of such action on behalf of the Underwriter
or such controlling person, it being understood, however, that the Company shall
not, in connection with any such action or separate but substantially related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys at any time for the Underwriter and controlling
persons, which firm shall be designated in writing by you). The Company shall
not be liable for any settlement of any such action effected without the written
consent of the Company, but if settled with such written consent, or if there be
a final judgment for the plaintiff in any such action, the Company agrees to
indemnify and hold harmless the Underwriter and any such controlling person from
and against any loss, liability, damage or expense by reason of such settlement
or judgment.
(c) The Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and any
person controlling the Company to the same extent as the foregoing indemnity
from the Company to the Underwriter, but only with respect to information in the
last paragraph on the front cover of the Prospectus, under the heading "Common
Stock Prices and Market for Our Common Stock" in the section of the Prospectus
entitled "Common Stock Prices and Dividends" and in the section of the
Prospectus entitled "Underwriting" that was furnished by or on behalf of the
Underwriter expressly for use in the Registration Statement, the Prospectus or
any preliminary prospectus, or any amendment or supplement thereto. If any
action or claim shall be brought or asserted against the Company, its directors,
any such officer or any such controlling person based on the Registration
Statement, the Prospectus or any preliminary prospectus, or any amendment or
supplement thereto and in respect of which indemnity may be sought against the
Underwriter, the Underwriter shall have the rights and duties given to the
Company by Section 10(b) above (except that if the Company shall have assumed
the defense thereof, the Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of the Underwriter),
and the Company, its directors, any such officer, any such controlling person
shall have the rights and duties given to the Underwriter by Section 10(b)
above.
(d) If the indemnification of the Underwriter or the Company
provided for in this Section 10 is unavailable as a matter of law to the
Underwriter or the Company, as the case may be, in respect of any loss, claim,
damage, liability or expense referred to therein, then the
XxXxxxxx & Company, Inc.
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indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or expense (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, as
the case may be, on the one hand and the Underwriter on the other from the
Public Offering or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriter on the other in
connection with the statements or omissions that resulted in such loss, claim,
damage, liability or expense, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same proportion as
the total net proceeds from the Public Offering (before deducting expenses)
received by the Company, bear to the total underwriting commissions received by
the Underwriter as set forth in the table on the cover page of the Prospectus
(as amended or supplemented) and in the section entitled "Underwriting" in the
Prospectus (as amended or supplemented). The relative fault of the Company on
the one hand and of the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
related to information supplied by the Company on the one hand or by the
Underwriter on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 10(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses actually and reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10(d), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares sold by it as agent for the
Company exceeds the amount of any damages that the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentations.
(e) In any proceeding relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 10 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such
XxXxxxxx & Company, Inc.
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process and agrees that any other contributing party may join him or it as an
additional defendant in any such proceeding in which such other contributing
party is a party.
(f) The indemnity and contribution agreements contained in this
Section 10 and the respective agreements, representations, warranties and other
statements of the Company or its officers and the Underwriter set forth in or
made pursuant to this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of the
Underwriter or the Company or any person controlling the Underwriter, the
Company or its directors, officers (or any person controlling the Company), (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of the Underwriter or the Company or
its directors or officers referred to above (or of any person controlling the
Underwriter or the Company) shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 10.
11. Effective Date of Agreement. This Agreement shall become effective
when signed by the parties to it.
12. Termination of Agreement. This Agreement shall be subject to
termination in your sole discretion, without liability on your part, by notice
given to the Company, if prior to the Closing Date (i) trading in securities
generally on the New York Stock Exchange or The Nasdaq Stock Market, Inc. shall
have been suspended or materially limited, (ii) a general moratorium on
commercial banking or thrift activities in Maryland or the United States shall
have been declared by either federal or state authorities or (iii) there shall
have occurred any major outbreak or escalation of hostilities or other
international or domestic calamity or crisis or major change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable or inadvisable to proceed with the Public Offering. Notice of such
cancellation shall be given to the Company by telegraph or telephone but shall
be subsequently confirmed by letter.
13. Notices. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telecopied and
confirmed as follows: if to the Underwriter, to XxXxxxxx & Company, Inc., 000
Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X.
XxXxxxxx, Xx.; if to the Company, to AmericasBank Corp., 000 Xxxx Xxxx, Xxxxxx,
Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, President.
14. Successors. This Agreement has been and is made solely for the
benefit of the Underwriter, the Company and their respective successors,
executors, administrators, heirs and assigns, and the officers, directors and
controlling persons referred to herein, and no other person will have any right
or obligation hereunder. The term "successor" shall not include any purchaser of
the Shares merely because of such purchase.
XxXxxxxx & Company, Inc.
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15. Counterparts. 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.
16. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Virginia without reference
to the conflict of laws principles thereof.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
Very truly yours,
AMERICASBANK CORP.
By:________________________________
Name:______________________________
Title:_____________________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
XxXXXXXX & COMPANY, INC.
By:________________________________
Name:______________________________
Title:_____________________________
