Exhibit 1(b)
XXXXXX CAPITAL TRUST o
(a statutory Delaware business trust)
$o
o o% Trust Preferred Securities
(Liquidation Amount $o per Preferred Security)
Fully and Unconditionally Guaranteed by
XXXXXX BANCORP, INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
New York, New York
o, 2001
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Xxxxxx Capital Trust o (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Section 3801 et seq.),
and Xxxxxx Bancorp, Inc., a Delaware corporation (the "Company" and, together
with the Trust, the "Offerors"), as sponsor of the Trust and as guarantor of
the securities of the Trust, propose, upon the terms and conditions set forth
in this underwriting agreement (this "Agreement") to issue and sell o o% Trust
Preferred Securities with an aggregate liquidation amount equal to $o (the
"Preferred Securities") to o and the other Underwriters set forth on Schedule I
attached hereto (collectively, the "Underwriters"), for whom you (the
"Representatives") are acting as representatives.
The Preferred Securities and the Common Securities (as defined herein) are
to be issued pursuant to the terms of an Amended and Restated Declaration of
Trust, dated as of o, 2001 (the "Declaration"), among Xxxxxx Bancorp, Inc., as
sponsor, The Chase Manhattan Bank ("Chase Manhattan"), a New York banking
corporation, as institutional trustee ("Institutional Trustee"), Chase
Manhattan Bank USA, National Association ("Trust Delaware"), a national banking
association, as Delaware trustee ("Delaware Trustee" and, together with the
Institutional Trustee, the "Trustees"), o, o and o, as regular trustees (the
"Regular Trustees"), and the holders from time to time of undivided interests
in the assets of the Trust. The Preferred Securities will be guaranteed by the
Company on a subordinated basis and subject to certain limitations with
respect to distributions and payments upon liquidation, redemption or otherwise
(the "Guarantee") pursuant to a Guarantee Agreement, to be dated as of o, 2001
(the "Guarantee Agreement"), between the Company and Chase Manhattan, as
Trustee (the "Guarantee Trustee"). The Preferred Securities issued in book-
entry form will be issued to Cede & Co., as nominee of The Depository Trust
Company ("DTC"), pursuant to a letter agreement, to be dated as of the Closing
Date (as defined herein) (the "DTC Agreement"), among the Trust, Chase
Manhattan and DTC.
The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities") in an aggregate liquidation
amount of $o and will be used by the Trust to purchase $o aggregate principal
amount of o% Junior Subordinated Debentures due o (the "Junior Subordinated
Debentures") to be issued by the Company on the Closing Date. The Company will
purchase the Common Securities from the Trust pursuant to a Common Securities
Subscription Agreement, dated o, 2001 (the "Common Securities Subscription
Agreement"). The Trust will purchase the Junior Subordinated Debentures from
the Company pursuant to a Junior Subordinated Debentures Subscription
Agreement, dated o, 2001 (the "Debenture Subscription Agreement" and, together
with the Common Securities Subscription Agreement, the "Subscription
Agreements"). The Junior Subordinated Debentures will be issued pursuant to an
indenture, to be dated as of o, 2001 (the "Indenture"), between the Company and
Chase Manhattan, as trustee (the "Indenture Trustee").
The Preferred Securities, the Guarantee and the Junior Subordinated
Debentures are referred to collectively as the "Securities." The Declaration,
the Indenture, the Guarantee Agreement, the DTC Agreement, the Subscription
Agreements and this Agreement are collectively referred to as the "Operative
Agreements."
The Company, the Trust and a certain other trusts sponsored by the Company
have filed with the Securities and Exchange Commission (the "Commission") a
joint registration statement on Form S-3 (No. 333-o) for the registration of
the Securities and certain other securities described therein under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
Registration Statement has been declared effective by the Commission and each
of the Declaration, the Guarantee Agreement and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and the rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations") on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and any reference herein to the
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terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the 1934 Act or the 1934 Act Regulations after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
For purposes of this Agreement, all references to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
1. Representations and Warranties. Each of the Trust, as to itself,
and the Company represents and warrants to, and agrees with, each Underwriter
as of the date hereof and as of the Closing Date (in each case, a
"Representation Date"), as set forth below.
(a) The Offerors meet the requirements for use of Form S-3 under the
1933 Act and have prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, including a related basic prospectus, for registration under the
1933 Act of the offering and sale of the Securities. The Offerors may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Offerors will file with the Commission, if required, one of the following:
(1) after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance with Rules
430A and 424(b), (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the form
of final prospectus supplement) or (3) a final prospectus in accordance
with Rules 415 and 424(b). In the case of clause (1), the Offerors have
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the 1933
Act and the 1933 Act Regulations to be included in such registration
statement and the Final Prospectus. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement shall
contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Offerors
have advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the 1933 Act, the 1933 Act Regulations, the
1934 Act, the 1934 Regulations and the 1939 Act and the rules and
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regulations thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date, the
Indenture did or will comply in all material respects with the applicable
requirements of the 1939 Act and the rules thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any 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, however, that the Offerors make no
representations or warranties as to (i) those parts of the Registration
Statement which shall constitute Chase Manhattan's Statements of
Eligibility and Qualification on Form T-1 (the "Form T-1s") under the 1939
Act or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Offerors by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification.
(d) The Company is duly registered as a savings and loan holding
company under the Home Owners' Loan Act of 1933, as amended ("HOLA"); the
Company and each of its subsidiaries are in compliance in all material
respects with all laws administered by and regulations of the Federal
Deposit Insurance Corporation (the "FDIC"), the Office of Thrift
Supervision (the "OTS") and any other federal or state bank regulatory
authorities (collectively with the FDIC and the OTS, the "Bank Regulatory
Authorities") with jurisdiction over the Company or any of its
subsidiaries, other than where any such failure to comply would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries is a party to any written agreement or memorandum of
understanding with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of, any Bank Regulatory Authority which
restricts materially the conduct of its business, or in any manner relates
to its capital adequacy, its credit policies or its management, nor have
any of them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting (or considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission, or any such board resolutions.
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(e) Xxxxxx Savings Bank (the "Bank") has been duly organized and is
validly existing as a New York State-chartered stock savings bank and is a
member in good standing of the Federal Home Loan Bank of New York; the
Bank's deposit accounts are insured up to applicable limits by the Federal
Deposit Insurance Corporation's Bank Insurance Fund; and no proceeding for
the termination or revocation of such insurance is pending or, to the
knowledge of the Company or the Bank, threatened.
(f) The Bank is the only "Significant Subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X under the 1933 Act).
(g) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Final Prospectus and to enter into and perform its obligations under the
Operative Agreements to which it is a party, the Preferred Securities, the
Common Securities and any other instruments or agreements to which it is a
party. The Trust is not a party to or otherwise bound by any material
instrument or agreement other than those described in the Registration
Statement; and the Trust is and will, under current law, be classified for
United States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
(h) Since the date of the most recent financial statements included
or incorporated by reference in the Final Prospectus, there has been no
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries (including the Trust), taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated by the Final Prospectus (a "Material Adverse
Effect").
(i) As of the date specified in the Final Prospectus, the Company's
duly authorized and validly issued capital is as set forth in the Final
Prospectus in the column entitled "Actual" under the caption
"Capitalization." The Company's shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any securityholder or
the Company.
(j) All the outstanding shares of capital stock of each subsidiary of
the Company (other than the Trust) have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Final Prospectus, all of the outstanding shares of voting
capital stock of the subsidiaries are owned by the Company either directly
or through wholly-owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(k) As of the Closing Date, the Common Securities will have been duly
authorized for issuance by the Trust pursuant to the Declaration and, when
issued and delivered by the Trust to the Company against payment therefor
as described in the Final Prospectus, will be validly issued undivided
common beneficial interests in the assets of the Trust. The issuance of
the Common Securities will not be subject to preemptive or other similar
rights. As of the Closing Date, all of the issued and outstanding Common
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Securities of the Trust will be directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equitable right.
(l) As of the Closing Date, the Preferred Securities will have been
duly authorized for issuance and sale by the Trust pursuant to the
Agreement. Such Preferred Securities, when issued and delivered in the
manner provided for in the Declaration against payment of the
consideration therefor as provided herein, will be validly issued and
fully paid and non-assessable undivided preferred beneficial interests in
the assets of the Trust. The issuance of the Preferred Securities will not
be subject to preemptive or other similar rights. The Preferred Securities
will be in the form specified in, and each registered holder thereof will
be entitled to the benefits of, the Declaration.
(m) The Declaration has been duly authorized, and, at the Closing
Date will have been executed and delivered by the Company and the Regular
Trustees and, assuming due authorization, execution and delivery of the
Declaration by the Institutional Trustee and the Delaware Trustee, the
Declaration will constitute a valid and binding agreement of the Company
and the Regular Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding at law or in equity).
(n) The Guarantee Agreement has been duly authorized, and, at the
Closing Date will have been executed and delivered by the Company and,
assuming due authorization, execution and delivery thereof by the
Guarantee Trustee, the Guarantee Agreement will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or
by general equitable principles (regardless of whether enforcement is
considered in a proceeding at law or in equity).
(o) Each of the Regular Trustees of the Trust is an employee of the
Company and has been duly authorized by the Company to execute and deliver
the Declaration.
(p) This Agreement has been duly authorized, executed and delivered
by the Trust and the Company.
(q) Each of the Subscription Agreements has been duly authorized by
each of the Company and the Trust, and, at the Closing Date will have been
executed and delivered by each of the Company and the Trust and each
Subscription Agreement will constitute a valid and binding agreement of
the Company and the Trust, enforceable against the Company and the Trust
in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the
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enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding at law or in equity).
(r) The Indenture has been duly authorized, and, at the Closing Date
will have been duly executed and delivered by the Company and, assuming
due authorization, execution and delivery by the Indenture Trustee, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(s) The Junior Subordinated Debentures have been duly authorized by
the Company for issuance and sale to the Trust as contemplated by this
Agreement. The Junior Subordinated Debentures, when issued and
authenticated in the manner provided for in the Indenture and delivered
against payment of the consideration therefor in accordance with the terms
of the Debenture Subscription Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Junior Subordinated Debentures will
be in the form contemplated by, and each registered holder thereof will be
entitled to the benefits of, the Indenture.
(t) The Securities and the Operative Agreements, as of each
Representation Date, will conform in all material respects to the
statements relating thereto contained in the Final Prospectus and will be
in substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(u) Neither the Trust nor Company is and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will be, an "investment
company" as defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(v) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the 1933 Act and the 1939 Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Final Prospectus.
(w) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment
of the terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or
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encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws of the Company or any
of its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its or
their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties.
(x) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Final
Prospectus and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash flows of
the Company and its consolidated subsidiaries as of the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and have been
prepared in conformity with United States generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The selected financial data set forth
under the caption "Selected Historical Consolidated Financial Data" in the
Final Prospectus fairly present, on the basis stated in the Final
Prospectus, the information included therein.
(y) KPMG LLP, who have audited certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
included in the Final Prospectus, are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the 1933 Act
Regulations.
(z) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) would have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii) would
result in a Material Adverse Effect.
(aa) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or by-laws, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as applicable.
(bb) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
Material Adverse Effect and has paid all taxes
8
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not result in a Material Adverse
Effect.
(cc) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; there are
no claims by the Company or any of its subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company nor
any such subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such subsidiary has any
reason to believe that it 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 its business at a
cost that would not result in a Material Adverse Effect.
(dd) No subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any
other distribution on such subsidiary's capital stock, from repaying to
the Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Final Prospectus and applicable banking laws and
regulations.
(ee) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(ff) The Company and each of its subsidiaries 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.
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(gg) 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 1934 Act, the 1934 Act Regulations or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(hh) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not, individually
or in the aggregate, result in a Material Adverse Effect. Except as set
forth in the Final Prospectus, neither the Company nor any of the
subsidiaries has been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended.
(ii) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of the
Company and its subsidiaries are eligible to participate and each such
plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Trust
and the Company jointly and severally agree to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto the principal
amount of the Securities set forth opposite such Underwriter's name in Schedule
II hereto.
3. Delivery and Payment.
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(a) Delivery. Delivery of and payment for the Preferred Securities
shall be made on the date which is o Business Days after the Execution
Date, which date and time may be postponed by agreement among the
Representatives, the Trust and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Preferred
Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to
or upon the order of the Trust by wire transfer payable in same-day funds
to an account specified by the Trust. Delivery of the Preferred Securities
shall be made through the facilities of DTC unless the Representatives
shall otherwise instruct. Delivery of the Preferred Securities shall be
made at such location as o shall reasonably designate at least one
Business Day in advance of the Closing Date. Certificates for the
Preferred Securities shall be registered in such names and in such
denominations as o may request not less than two Business Days in advance
of the Closing Date. The Trust and the Company agrees to have the
Preferred Securities available for inspection, checking and packaging by
the Representatives in New York, New York, not later than 1:00 P.M. on the
Business Day prior to the Closing Date.
(b) Payment. Payment of the purchase price for, and delivery of, the
Preferred Securities shall be made at the offices of Sidley Xxxxxx Xxxxx &
Wood LLP, One World Trade Center, New York, New York, or at such other
place as shall be agreed upon by the Underwriters and the Trust, at 9:00
A.M. (Eastern time) on the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Preferred Securities for sale to the public
as set forth in the Final Prospectus.
5. Agreements. Each of the Offerors agrees with the several
Underwriters that:
(a) Each of the Offerors will use its respective best efforts to
cause the Registration Statement, if not effective at the Execution Time,
and any amendment thereof, to become effective. Prior to the termination
of the offering of the Preferred Securities, the Offerors will not file
any amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the Offerors
have furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of the
Final Prospectus is otherwise required under Rule 424(b), the Offerors
will cause the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Offerors will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Preferred Securities,
11
any amendment to the Registration Statement shall have been filed or
become effective, (4) of any request by the Commission or its staff for
any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (5) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose and
(6) of the receipt by the Offerors of any notification with respect to the
suspension of the qualification of the Preferred Securities for sale in
any jurisdiction or the institution or threatening of any proceeding for
such purpose. Each of the Offerors will use its best efforts to prevent
the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the 1933 Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations, the Offerors promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final Prospectus to
you in such quantities as you may reasonably request.
(c) The Offerors will use the net proceeds received by them from the
sale of the Preferred Securities, the Common Securities and the Junior
Subordinated Debentures in the manner specified in the Final Prospectus
under "Use of Proceeds."
(d) The Offerors, during the period when a prospectus relating to the
Preferred Securities is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act and the 1934 Act Regulations within the time
periods required thereby.
(e) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement
or statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 under the 1933
Act Regulations.
(f) The Offerors will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by
the 1933 Act, as many copies of each Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
12
(g) The Offerors will arrange, if necessary, for the qualification of
the Preferred Securities for sale under the laws of such jurisdictions as
the Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Preferred
Securities and will pay any fee of the National Association of Securities
Dealers, Inc. ("NASD") in connection with any review by it of the
offering; provided, that in no event shall the Offerors 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 service of
process in suits, other than those arising out of the offering or sale of
the Preferred Securities, in any jurisdiction where it is not now so
subject.
(h) Neither the Trust nor the Company will, without the prior written
consent of o, offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the 1934 Act, any
preferred securities issued or guaranteed by the Offerors (other than the
Preferred Securities) or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I hereto.
(i) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the 1934 Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Preferred Securities.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Preferred Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Offerors made in any certificates pursuant to the
provisions hereof, to the performance by the Offerors of their respective
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 P.M. New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 P.M.
New York City time on such date or (ii) 9:30 A.M. on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 P.M. New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and 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 threatened.
13
(b) The Offerors shall have requested and caused Xxxxxxx Xxxxxx &
Xxxxxxxx LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full corporate
power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Final Prospectus. The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business and where
the failure to be so qualified would, individually or in the
aggregate, result in a Material Adverse Effect.
(ii) The Company is registered as a savings and loan holding
company under HOLA; to its best knowledge, the Company and each of
its subsidiaries are in compliance in all material respects with all
laws administered by and regulations of any Bank Regulatory Authority
with jurisdiction over the Company or any of its subsidiaries, other
than where any such failure to comply would not have a Material
Adverse Effect; and, to its best knowledge, neither the Company nor
any of its subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter
or similar undertaking to, or is subject to any order or directive
by, or is a recipient of any extraordinary supervisory letter from,
or has adopted any board resolutions at the request of, any Bank
Regulatory Authority which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its
credit policies or its management, nor have any of them been advised
by any Bank Regulatory Authority that it is contemplating issuing or
requesting (or considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission, or any such board resolutions.
(iii) The Bank is validly existing as a New York State-chartered
stock savings bank and is a member in good standing of the Federal
Home Loan Bank of New York; the Bank's deposit accounts are insured
up to applicable limits by the Federal Deposit Insurance
Corporation's Bank Insurance Fund; and, to its best knowledge, no
proceeding for the termination or revocation of such insurance is
pending or, to the knowledge of the Company or the Bank, threatened.
(iv) To the best of its knowledge, the Bank is the only
"Significant Subsidiary" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X under the 1933 Act).
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Declaration has been duly authorized, executed and
delivered by the Company and the Regular Trustees, and constitutes a
legal, valid and
14
binding instrument enforceable against the Company and the Regular
Trustees in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity and law,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law); and the Preferred
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Declaration
and delivered to and paid for by the Underwriters pursuant to this
Agreement, will constitute legal, valid and binding obligations of
the Trust entitled to the benefits of the Declaration. The Preferred
Securities are in the form contemplated by, and each registered
holder thereof is entitled to the benefits of, the Declaration.
(vii) The Indenture has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and
to general principles of equity or law, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether considered in a proceeding in
equity or at law).
(viii) The Junior Subordinated Debentures have been duly
authorized, executed and delivered by the Company for issuance and
sale to the Trust and, when executed and authenticated in the manner
provided for in the Indenture and delivered to and paid for by the
Trust in accordance with the terms of the Debenture Subscription
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law). The
Junior Subordinated Debentures are in the form contemplated by, and
each registered holder thereof is entitled to the benefits of, the
Indenture.
(ix) The Guarantee Agreement has been duly authorized, and, at
the Closing Date will have been executed and delivered by the Company
and, assuming due authorization, execution and delivery thereof by
the Guarantee Trustee, the Guarantee Agreement will constitute a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
15
(x) Each of the Subscription Agreements has been duly
authorized, executed and delivered by the Company, and constitutes a
legal, valid and binding agreement enforceable against the Company in
accordance with its respective terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity or law,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
(xi) The Securities and the Operative Agreements conform in all
material respects to the statements relating thereto contained in the
Final Prospectus and, to the extent applicable, are in substantially
the form filed or incorporated by reference, as the case may be, as
an exhibit to the Registration Statement.
(xii) The Registration Statement and the Final Prospectus,
excluding the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and Final
Prospectus, excluding the documents incorporated by reference
therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules and other financial
data included therein or omitted therefrom and each Form T-1, as to
which such counsel need express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(xiii) The documents incorporated by reference in the Final
Prospectus (other than the financial statements and supporting
schedules and other financial data included therein or omitted
therefrom, as to which such counsel need express no view), when they
became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
or the 1934 Act Regulations, as applicable.
(xiv) The Registration Statement has become effective under the
1933 Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened and such counsel has
no reason to believe that on the Effective Date or the date the
Registration Statement was last deemed amended, the Registration
Statement contained any untrue statement of a 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
Final Prospectus as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
16
not misleading (in each case, other than the financial statements and
other financial information contained therein and each Form T-1, as
to which such counsel need express no view).
(xv) Each of the Declaration, the Indenture and the Guarantee
Agreement has been duly qualified under the 0000 Xxx.
(xvi) (A) The statements in the Registration Statement and the
Final Prospectus insofar as they are descriptions of contracts,
agreements, instruments or the Company's Certificate of Incorporation
or legal proceedings, or constitute statements or summaries of United
States federal, New York State laws or the General Corporation Law of
the State of Delaware or legal conclusions with respect thereto, are
accurate and present fairly the information required to be shown and
(B) the statements included in the Final Prospectus under the
headings "Certain United States Federal Income Tax Consequences,"
"ERISA Considerations," and "Supervision and Regulation" and the
statements incorporated by reference in the Final Prospectus from the
Company's most recent Annual Report on Form 10-K under the heading
"Supervision and Regulation," in each case, insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings.
(xvii) Neither the Trust nor the Company is and, after giving
effect to the offering and sale of the Preferred Securities and the
application of the proceeds thereof as described in the Final
Prospectus, will be, an "investment company" as defined in the 1940
Act.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, the Federal laws of the United States or the General
Corporation Law of the State of Delaware, to the extent they deem proper
and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Offerors
and public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Offerors shall have requested and caused R. Xxxxxxx Xxxxx,
General Counsel and Secretary of the Company, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of the Company's subsidiaries (other than the Trust) is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in the Final Prospectus, and is duly qualified to
17
do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification.
(ii) As of the date specified in the Final Prospectus, the
Company's duly authorized and validly issued capital is as set forth
in the Final Prospectus in the column entitled "Actual" under the
caption "Capitalization." Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was issued
in violation of preemptive or other similar rights of any
securityholder or the Company.
(iii) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable (except as provided in
statutes pursuant to which depository institution subsidiaries are
subject), and, except as otherwise set forth in the Final Prospectus,
a controlling majority of the outstanding shares of voting capital
stock of the subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(iv) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the 1933 Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such
other approvals (specified in such opinion) as have been obtained.
(v) Neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries pursuant to, (A) the
charter or by-laws of the Company or its subsidiaries, (B), to its
best knowledge, the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or its subsidiaries is a party or bound or to which its or
their property is subject, or (C) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or its subsidiaries or any of its or their
properties.
(vi) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its
18
subsidiaries or their respective property, of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described in
the Registration Statement or Final Prospectus, or to be filed as an
exhibit thereto, which is not described or filed as required.
(d) The Offerors shall have requested and caused Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel for the Offerors, to have furnished
to the Representatives their opinion, dated the Closing Date and addressed
to the Representatives, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings
required under the laws of the State of Delaware with respect to the
formation and valid existence of the Trust as a business trust have
been made; under the Declaration and the Delaware Act, the Trust has
all necessary trust power and authority to (A) own property and to
conduct its business as described in the Registration Statement and
the Final Prospectus, (B) execute, deliver and perform its
obligations under each of the Operative Agreements to which it is a
party, (C) issue and perform its obligations under the Preferred
Securities and Common Securities, and (D) purchase and hold the
Junior Subordinated Debentures.
(ii) Under the Declaration and the Delaware Act, the execution
and delivery by the Trust of the Operative Agreements to which it is
a party, and the performance by the Trust of its obligations
thereunder, have been duly authorized by all necessary trust action
on the part of the Trust.
(iii) Assuming due authorization, execution and delivery by the
Company and the Regular Trustees, the Declaration is a valid and
binding obligation of the Company and the Regular Trustees, and is
enforceable against the Company and the Regular Trustees in
accordance with its terms, except as enforcement thereof may be
limited by (A) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and
other similar laws relating to or affecting the rights and remedies
of creditors generally, (B) principles of equity or law, including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law) and (C)
the effect of applicable public policy on the enforceability of
provisions relating to indemnification.
(iv) The Preferred Securities have been duly authorized by the
Declaration and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust. The
holders of the Preferred Securities will be entitled to the benefits
of the Declaration and, as beneficial owners of the Trust, are
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the
holders of the Preferred Securities may be
19
obligated, pursuant to the Declaration, to (A) provide indemnity
and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Preferred Securities
and the issuance of replacement Preferred Securities and (B) provide
security and/or indemnity in connection with requests of or
directions to the Institutional Trustee to exercise its rights and
powers under the Declaration. Under the Declaration and the Delaware
Act, the issuance of the Preferred Securities is not subject to
preemptive or other similar rights.
(v) The execution, delivery and performance by the Trust of this
Agreement, the Subscription Agreements, the Preferred Securities and
the Common Securities, the consummation by the Trust of the
transactions contemplated therein, and the compliance by the Trust
with its obligations thereunder do not result in any violation of the
Declaration, the Certificate of Trust or any applicable Delaware law
or Delaware administrative regulation.
(vi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any
Delaware court or Delaware governmental authority or Delaware agency
is necessary or required in connection with the execution or delivery
by the Trust of the Operative Agreements to which it is a party, or
the performance by the Trust of the transactions contemplated
thereby.
(e) The Representatives shall have received from Sidley Xxxxxx Xxxxx
& Wood LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Operative Agreements, the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Trust and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(f) The Representatives shall have received from Xxxxx Xxxxxxx
Xxxxxxx & Xxxxx LLP, counsel for Chase Manhattan, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to such matters as the Representatives may reasonably
require, and the Trust and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(g) The Company shall have furnished to the Representatives a
certificate signed by the Chief Executive Officer and the principal
financial or accounting officer of the Company, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the
20
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no Material
Adverse Effect.
(h) The Trust shall have furnished to the Representatives a
certificate signed by two Regular Trustees of the Trust, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplements
to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Trust in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Trust has complied
with all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Trust's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus, there
has been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Trust,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(i) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date, letters, (which may refer to letters previously delivered to one or
more of the Representatives), dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the 1933 Act, the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations and that they have performed a review of the
unaudited interim financial information of the Company for the [three-,
six- and nine-month periods ended o, o and o,] in accordance with
Statement on Auditing Standards No. 71, and stating in effect that:
(i) in their opinion the consolidated financial statements
audited by them and included in the Company's Annual Report on Form
10-K at December 31, o and incorporated by reference in the
Registration Statement and the Final Prospectus comply as to form in
all material respects with the applicable
21
accounting requirements of the 1933 Act, 1933 Act Regulations, the
1934 Act and the 1934 Act Regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company of the unaudited interim
financial information for the o-month period ended o, 2001 and as at
o, 2001, performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS 71 Interim Financial
Information (but not an examination in accordance with auditing
standards generally accepted in the United States), which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter, a reading of the minutes of the
meetings of the shareholders and Board of Directors of the Company as
set forth in the minute books through a specified date not more than
three days prior to the date of the letter; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company as to transactions and events
subsequent to o, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the 1933 Act
and with the 1933 Act Regulations with respect to financial
statements included or incorporated by reference in quarterly
reports on Form 10-Q under the 1934 Act; and said unaudited
financial statements are not in conformity with accounting
principles generally accepted in the United States applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated by reference in
the Registration Statement and the Final Prospectus;
(2) at o, there were any changes in common stock, increase
in consolidated long-term debt, decrease in consolidated
shareholders' equity, consolidated total assets or consolidated
allowance for loan losses, as compared with the amounts shown on
the o unaudited statement of condition included or incorporated
by reference in the Registration Statement and the Final
Prospectus, or for the period from o to o, there was any
decrease, as compared with the corresponding periods in the
preceding year, in consolidated revenues (which consist of total
consolidated interest income and total non-interest income),
consolidated net interest income before provision for loan
losses, consolidated income before provision for income taxes
and extraordinary item or in total or per-share amount of
consolidated net income, except in all instances for changes,
increases, or decreases that that Registration Statement
discloses have occurred or may occur and except in all instances
for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company
as to the significance
22
thereof unless said explanation is not deemed necessary by the
Representatives; and
(3) the information included or incorporated by reference
in the Registration Statement and Final Prospectus in response
to Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K;
(iii) with respect to the period from o to o, 2001 they have:
(1) read the unaudited consolidated financial statements of
the Company for the o months ended o of both 2001 and 2000
furnished to them by the Company, officials of the Company have
advised them that no such consolidated financial statements as
of any date or for any period subsequent to o, 2001 were
available; and
(2) inquired or certain officials of the Company who have
the responsibility for financial and accounting matters as to
whether the unaudited consolidated financial statements referred
to in (iii) (1) are stated on a basis substantially consistent
with that of the audited consolidated financial statements
incorporated by reference in the Registration Statement; and
(iv) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
set forth under the captions "Capitalization" and "Selected
Historical Consolidated Financial Data" in the Final Prospectus, the
information included or incorporated by reference in Items 1, 2, 6, 7
and 11 of the most recent Company's Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and the Final
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Final Prospectus, [the information
included in Item 7 of the Company's Reports on Form 8-K filed on o
incorporated by reference in the Registration Statement and Final
Prospectus, and certain financial information about the Company
included in the Company's Form 8-K filed on o incorporated by
reference in the Registration Statement and the Final Prospectus],
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
23
References to the Final Prospectus in this paragraph (i) include any
supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus, there shall not have been (i)
any change or decrease specified in the letter or letters referred to in
paragraph (i) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries, 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 Final Prospectus the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement and the Final Prospectus.
(k) At the Closing Date, the Preferred Securities shall be rated no
lower than o by Standard & Poor's Ratings Services and o by Xxxxx'x
Investors Service, Inc., and the Company shall have delivered to the
Underwriters a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Underwriters,
confirming that the Preferred Securities have such ratings. Since the time
of execution of this Agreement, there shall not have occurred a
downgrading in, or withdrawal of, the rating assigned to the Preferred
Securities or any of the Company's securities or financial strength by any
such rating organization or any other "nationally recognized statistical
rating organization," as defined for purposes of Rule 436(g)(2) under the
1933 Act Regulations, and no such rating organization shall have publicly
announced that it has under surveillance or review with negative
implications its rating of the Preferred Securities or any of the
Company's securities or financial strength.
(l) The Preferred Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the Representatives.
(m) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be
given to the Company in writing or by telephone or facsimile confirmed in
writing.
24
The documents required to be delivered by this Section 6 shall be
delivered at the office of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, at Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the
Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Offerors will reimburse the
Underwriters severally through o on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution.
(a) The Offerors agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the 1933 Act or the 1934 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the 1933 Act, the 1934 Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in
any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Offerors will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Offerors by or
on behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Offerors may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Offerors, each of its respective directors,
respective officers, employees and agents who signs the Registration
Statement, and each person who controls the Trust and the Company within
the meaning of either the 1933 Act or the 1934 Act, to the same extent as
the foregoing indemnity in paragraph (a) above from the Offerors to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Offerors by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This
25
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Offerors acknowledges that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting," (i) the
list of Underwriters and their respective participation in the sale of the
Preferred Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Final Prospectus
and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
26
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Offerors and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses")
to which the Offerors and one or more of the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits
received by the Offerors on the one hand and by the Underwriters on the
other from the offering of the Preferred Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Preferred
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Preferred Securities purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Offerors and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Offerors on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations.
Benefits received by the Offerors shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions (before deducting
expenses), in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Offerors on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree
that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of either the 1933
Act or the 1934 Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the 1933 Act or the 1934 Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Preferred Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
number of Preferred Securities set forth opposite their names in Schedule II
hereto bears to the number of
27
Preferred Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
number of Preferred Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the number of Preferred
Securities set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Preferred Securities, and if such nondefaulting
Underwriters do not purchase all the Preferred Securities, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Offerors.
In the event of a default by any Underwriter as set forth in this Section 9,
the Closing Date shall be postponed for such period, not exceeding five
Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Offerors and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Offerors
prior to delivery of and payment for the Preferred Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on either of such exchange or the Nasdaq National Market, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Offerors or its respective officers or trustees and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Offerors or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to o (fax no.: o) and confirmed to o, at o, Attention:
o; or, if sent to the Company, will be mailed, delivered or telefaxed to Xxxxxx
Bancorp, Inc., o (fax no.: o) and confirmed to R. Xxxxxxx Xxxxx, General Counsel
of Xxxxxx Bancorp, Inc., Xxx Xxxxxxx Xxxxx, X.X. Xxx 0000 Xxxxxxx, XX
00000-0000.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents
28
and controlling persons referred to in Section 8 hereof, and no other person
will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration
29
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the 1933 Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
XXXXXX CAPITAL TRUST o
By: XXXXXX BANCORP, INC., as sponsor
By: ____________________________________
Name:
Title:
XXXXXX BANCORP, INC.
By: ____________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
o
By: o
By: ______________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
31
SCHEDULE I
Underwriting Agreement dated: o, 2001
Registration Statement No. 333-o
Representative(s): o
Closing Date: o, 2001
Title: o% Preferred Securities
Distribution rate: o% per annum
Distribution payment dates: [o, o,] o and o of each year, commencing o, o
Record dates: The o calendar day of the month in which each
distribution payment date falls.
Liquidation amount: $o per security, plus accumulated
distributions, if any
Redemption provisions: The Company will have the right to redeem the
Junior Subordinated Debentures upon the
occurrence of a Tax Event, an Investment
Company Event or a Regulatory Capital Event,
in whole but not in part, within 90 days of
the occurrence of such event.
Initial public offering price: $o per security plus accumulated
distributions, if any, from o, o
Purchase price: $o per security plus accumulated
distributions, if any, from o, o
Underwriter commission: $o per security
Form: Book-entry only
Type of Offering: Non-delayed
Date referred to in Section 5(h) after which the Company may offer or sell
preferred securities issued or guaranteed by the Company without the consent of
the Representative(s): o, o.
I-1
Modification of items to be covered by the letter from
KPMG LLP delivered pursuant to
Section 6(e) at the Execution Time: o
I-2
SCHEDULE II
Number of
Preferred
Securities to
Underwriters be Purchased
------------ -------------
o................................................ o
o................................................ o
-------------
Total................................ o
=============
II-1
