Exhibit 1.1
2,000,000 Shares
Xxxxxxxx Bancorp Inc.
Common Stock
UNDERWRITING AGREEMENT
----------------------
___________, 1997
XXXXXXXXXXX & CO., INC.
NATWEST SECURITIES LIMITED
c/o Oppenheimer & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
Xxxxxxxx Bancorp Inc., a Florida corporation (the "Company"),
proposes to sell to you and the other underwriters named on Schedule I to this
Agreement (the "Underwriters"), for whom you are acting as Representatives, an
aggregate of 2,000,000 shares (the "Firm Shares") of the Company's Common Stock,
$0.01 par value (the "Common Stock"). In addition, the Company proposes to
grant to the Underwriters an option to purchase up to an additional 300,000
shares (the "Option Shares") of Common Stock from it for the purpose of covering
over-allotments in connection with the sale of the Firm Shares. The Firm Shares
and the Option Shares are together called the "Shares."
1. SALE AND PURCHASE OF THE SHARES. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase
from the Company, at $_______ per share (the "Initial Price"), the number
of Firm Shares set forth opposite the name of such Underwriter on Schedule
I to this Agreement.
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(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representatives
to eliminate fractions) of the total number of Option Shares to be
purchased by the Underwriters as such Underwriter is purchasing of the Firm
Shares. Such option may be exercised only to cover over-allotments in the
sales of the Firm Shares by the Underwriters and may be exercised in whole
or in part at any time and from time to time on or before 12:00 noon, New
York City time, on the business day before the Firm Shares Closing Date (as
defined below), and from time to time thereafter within 30 days after the
date of this Agreement, in each case upon written or telegraphic notice, or
oral or telephonic notice confirmed by written or telegraphic notice, by
the Representatives to the Company no later than 12:00 noon, New York City
time, on the business day before the Firm Shares Closing Date or at least
two business days before each Option Shares Closing Date (as defined
below), as the case may be, setting forth the number of Option Shares to be
purchased and the time and date (if other than the Firm Shares Closing
Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm
Shares to the Representatives for the respective accounts of the Underwriters,
and payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (next day) funds to the Company, shall take
place at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on the third (fourth,
if pricing occurs after 4:30 p.m., New York City time) business day following
the date of this Agreement, or at such time on such other date, not later than
10 business days after the date of this Agreement, as shall be agreed upon by
the Company and the Representatives (such time and date of delivery and payment
are called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to the Representatives
for the respective accounts of the Underwriters and payment of the purchase
price by certified or official bank check or checks payable in New York Clearing
House (next day) funds to the Company shall take place at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx specified above at the time and on the date (which may be the
same date as, but in no event shall be earlier than, the Firm Shares Closing
Date) specified in the notice referred to in Section l(b) (such time and date of
delivery and payment are called an "Option Shares Closing Date"). The Firm
Shares Closing Date and each Option Shares Closing Date are called,
individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such
names and shall be in such denominations as the Representatives shall request at
least two full business days before the Firm Shares Closing Date or, in the case
of Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, one full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
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3. REGISTRATION STATEMENT AND PROSPECTUS, PUBLIC OFFERING. The
Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission"), a registration statement on Form S-1 (No.
333-20435), including a preliminary prospectus relating to the Shares, and has
filed with the Commission the Registration Statement (as hereinafter defined)
and such amendments thereof as may have been required to the date of this
Agreement and the Registration Statement has become effective under the
Securities Act. Copies of such Registration Statement (including all amendments
thereof) and of the related preliminary prospectus have heretofore been
delivered by the Company to you. The term "preliminary prospectus" means any
preliminary prospectus (as described in Rule 430 of the Rules) included at any
time as a part of the Registration Statement. The Registration Statement as
amended at the time and on the date it became effective (the "Effective Date"),
including all exhibits and information, if any, deemed to be part of the
Registration Statement pursuant to Rule 424(b) and Rule 430A of the Rules, is
called the "Registration Statement." The term "Prospectus" means the prospectus
in the form first used to confirm sales of the Shares (whether such prospectus
was included in the Registration Statement at the time of effectiveness or was
subsequently filed with the Commission pursuant to Rule 424(b) of the Rules).
The Company understands that the Underwriters propose to make a
public offering of the Shares, as set forth in and pursuant to the Prospectus,
as soon after the Effective Date and the date of this Agreement as the
Representatives deem advisable. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed each preliminary prospectus (except for the preliminary prospectus
included in the initial filing of the Registration Statement on January 27,
1997) and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to each Underwriter as follows:
(a) On the Effective Date the Registration Statement complied,
and on the date of the Prospectus, on the date any post-effective amendment
to the Registration Statement shall become effective, on the date any
supplement or amendment to the Prospectus is filed with the Commission and
on each Closing Date, the Registration Statement and the Prospectus (and
any amendment thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act and the
Rules and the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (the "Exchange Act"); the
Registration Statement did not, as of the Effective Date, 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; and on the other dates referred to above neither
the Registration Statement nor the Prospectus, nor any amendment thereof or
supplement thereto, will contain any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading. When any
related preliminary prospectus was first filed with the Commission
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(whether filed as part of the Registration Statement or any amendment
thereto or pursuant to Rule 424(a) of the Rules) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
preliminary prospectus as amended or supplemented complied in all material
respects with the applicable provisions of the Securities Act and the Rules
and did 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. Notwithstanding the
foregoing, the Company makes no representation or warranty as to the
paragraph with respect to stabilization on the inside front cover page of
the Prospectus and the statements contained under the caption
"Underwriting" in the Prospectus. The Company acknowledges that the
statements referred to in the previous sentence constitute the only
information furnished in writing by the Representatives on behalf of the
several Underwriters specifically for inclusion in the Registration
Statement, any preliminary prospectus or the Prospectus.
(b) The financial statements of the Company (including the notes
thereto) included in the Registration Statement and Prospectus present
fairly the consolidated financial position, the results of operations and
cash flows and the stockholders' equity purported to be shown therein of
the Company and its subsidiaries at the respective dates and for the
respective periods to which they apply; and such financial statements have
been prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, except as otherwise
stated therein.
(c) Deloitte & Touche LLP, whose report is filed with the
Commission as a part of the Registration Statement, are and, during the
periods covered by their report, were independent public accountants as
required by the Securities Act and the Rules.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Florida, and its subsidiary, Xxxxxxxx Bank, N.A., a national banking
association (the "Bank") has been duly organized and is validly existing as
a national banking association under the laws of the United States. The
Bank is the only subsidiary, direct or indirect, of the Company. The
Company does not control, directly or indirectly, any corporation (other
than the Bank), partnership, joint venture, association or other business
organization. The Company and the Bank are duly qualified and in good
standing as foreign corporations in each jurisdiction in which the
character or location of its assets or properties (owned, leased or
licensed) or the nature of its business makes such qualification necessary
except for such jurisdictions where the failure to so qualify would not
have a material adverse effect on the assets or properties, business,
results of operations, prospects or financial condition of the Company and
the Bank, taken as a whole. Each of the Company and the Bank has all
requisite corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits
(collectively, the "Authorizations") and has made all requisite
declarations, registrations and filings (collectively, the "Filings"), of,
from and with all governmental or regulatory bodies or any other person or
entity, to own, lease and license its assets and properties and conduct its
businesses as now being conducted and as described in the Registration
Statement and the Prospectus except for such Authorizations and Filings,
the failure to so obtain or make would not have a
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material adverse effect upon the assets or properties, business, results of
operations, prospects or financial condition of the Company and the Bank,
taken as a whole; no such authorization, approval, consent, order, license,
certificate or permit contains a materially burdensome restriction other
than as disclosed in the Registration Statement and the Prospectus; and the
Company has all such corporate power and authority, and such
authorizations, approvals, consents, orders, licenses, certificates and
permits to enter into, deliver and perform this Agreement and to issue and
sell the Shares (except as may be required under applicable state and
foreign Blue Sky laws and as may have been obtained under the Securities
Act).
(e) Each of the Company and the Bank is in compliance in all
material respects with all applicable laws administered by and regulations
of the Board of Governors of the Federal Reserve System (the "Board"), the
Office of the Comptroller of the Currency (the "OCC"), the Federal Deposit
Insurance Corporation (the "FDIC") and any state bank regulatory authority
with jurisdiction over the Company or the Bank, as the case may be ("Bank
Regulatory Authorities"), the failure to comply with which would have a
material adverse effect upon the assets or properties, business, results of
operations, prospects or financial condition of the Company and the Bank,
taken as a whole. Neither the Company nor the Bank 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 is
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.
(f) Except as disclosed in the Registration Statement and
Prospectus, the Company and the Bank each owns or possesses adequate and
enforceable rights, either as owner or licensee, to use all trademarks,
trademark applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct of its
business in all material respects as described in the Registration
Statement and the Prospectus. The Company has not received any notice of,
or to its best knowledge is not aware of, any infringement of or conflict
with asserted rights of others with respect to any Intangibles which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect upon the assets or
properties, business, results of operations, prospects or financial
condition of the Company and the Bank, taken as a whole.
(g) The Company and the Bank have good title to each of the
items of personal property which are reflected in the financial statements
referred to in Section 4(c) or are referred to in the Registration
Statement and the Prospectus as being owned by them and valid and
enforceable leasehold interests in each of the items of real and
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personal property which are referred to in the Registration Statement and
the Prospectus as being leased by them, in each case free and clear of all
liens, encumbrances, claims, security interests and defects, other than
those described in the Registration Statement and the Prospectus and those
which do not and will not have a material adverse effect upon the assets or
properties, business, results of operations, prospects or financial
condition of the Company and the Bank, taken as a whole.
(h) There is no litigation or governmental or other proceeding
or investigation before any court or before or by any public body or board
pending or, to the Company's best knowledge, threatened against, or
involving the assets, properties or business of, the Company or the Bank or
any of their respective directors or officers which, to the best of the
Company's present knowledge and belief, would materially adversely affect
any such assets or properties or the business, results of operations,
prospects or financial condition of the Company and the Bank, taken as a
whole, or which is otherwise material in the context of the offering of the
Shares contemplated hereby.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
described therein, (i) there has not been any material adverse change in
the assets or properties, business, results of operations, prospects or
financial condition of the Company, whether or not arising from
transactions in the ordinary course of business; (ii) the Company has not
sustained any material loss or interference with its assets, businesses or
properties (whether owned or leased) from fire, explosion, earthquake,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or any court or legislative or other governmental action,
order or decree; and (iii) and since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, except as
reflected therein, the Company has not (a) issued any securities (except
for securities issued in connection with the Reorganization as described in
the Registration Statement and the Prospectus) or incurred any liability or
obligation, direct or contingent, for borrowed money, except such
liabilities or obligations as may be incurred in the ordinary course of
business consistent with past practice, (b) entered into any transaction
not in the ordinary course of business consistent with past practice or (c)
declared or paid any dividend or made any distribution on any shares of its
stock or redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its stock.
(j) There is no document or contract of a character required to
be described in the Registration Statement or Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
so required by the Securities Act or the Rules. Neither the Company, the
Bank, nor to the best of the Company's knowledge, any other party is in
default in the observance or performance of any term or obligation to be
performed by it under any agreement filed as an exhibit to the Registration
Statement, and no event has occurred which with notice or lapse of time or
both would constitute such a default, in any such case where such default
or event would have a material adverse effect on the assets or properties,
business, results of operations, prospects or financial condition of the
Company and the Bank, taken as a whole. No default exists, and no event
has occurred which with notice or lapse of time or both would constitute a
default,
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in the due performance and observance of any term, covenant or condition,
by the Company or the Bank of any other agreement or instrument to which
the Company or the Bank is a party or by which it or its properties or
business may be bound or affected which default or event would have a
material adverse effect on the assets or properties, business, results of
operations, prospects or financial condition of the Company and the Bank,
taken as a whole.
(k) Neither the Company nor the Bank is in violation of any term
or provision of, in the case of the Company, its Amended and Restated
Articles of Incorporation (as amended, the "Company's Articles") and in the
case of the Bank, its Amended Articles of Association (as amended "Bank
Articles" and, together with the Company's Articles, the "Articles") or its
bylaws (the Company's and the Bank's bylaws together the "Bylaws") or of
any franchise, license, permit, judgment, ruling, decree, order, statute,
rule or regulation, where the consequences of such violation would have a
material adverse effect on the assets or properties, business, results of
operations, prospects or financial condition of the Company and the Bank,
taken as a whole.
(l) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance and sale
by the Company of the Shares) will (i) violate any provision of the
Articles or the Bylaws of the Company or the Bank or (ii) give rise to a
right to terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or the Bank
pursuant to the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or the Bank is a party or by
which the Company or the Bank or any of their properties or businesses are
bound, or any franchise, license, permit, judgment, ruling, decree, order,
statute, rule or regulation applicable to the Company, except in the case
of this clause (ii) for any such termination, acceleration, conflict,
breach, default, lien, charge or encumbrance which would not, individually
or in the aggregate, have a material adverse affect on the assets or
properties, business, results of operations, prospects or financial
condition of the Company and the Bank, taken as a whole, and except for
such consents or waivers which have already been obtained and are in full
force and effect.
(m) The Company has an authorized and outstanding capital stock
as set forth under the caption "Description of Capital Stock" in the
Prospectus as of the date indicated therein. All of the outstanding shares
of Common Stock have been duly and validly issued and are fully paid and
nonassessable and none of them were issued in violation of any preemptive
or other similar right. The Shares have been duly authorized and, when
issued and sold pursuant to this Agreement, will be duly and validly
issued, fully paid and nonassessable and none of them will be issued in
violation of any preemptive or other similar right. Except as disclosed in
the Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right (including, without limitation, preemptive
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rights) calling for the issuance of, and there is no commitment, plan or
arrangement to issue, any share of stock of the Company or any security
convertible into, or exercisable or exchangeable for, such stock or other
equity interest in the Company. The Common Stock and the Shares conform in
all material respects to all statements in relation thereto contained in
the Registration Statement and the Prospectus.
(n) No holder of any security of the Company has the right to
have any security owned by such holder included in the Registration
Statement or to demand registration of any security owned by such holder
during the period ending 180 days after the date of this Agreement.
(o) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and performance
of this Agreement and the issuance and sale of the Shares by the Company.
This Agreement has been duly and validly authorized, executed and delivered
by the Company and constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except (i) as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and (ii) to the extent that rights to indemnity or contribution
under this Agreement may be limited by Federal and state securities laws or
the public policy underlying such laws.
(p) Neither the Company nor the Bank is involved in any labor
dispute nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a material adverse effect on the
assets or properties, business, results of operations, prospects or
financial condition of the Company and the Bank, taken as a whole.
(q) No transaction has occurred between or among the Company or
any of its affiliates, officers or directors or any affiliate or affiliates
of any such officer or director that is required to be described in and is
not described in the Registration Statement and the Prospectus.
(r) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company and the Bank have filed all Federal, state,
local and foreign tax returns which are required to be filed by them,
either on an individual or consolidated basis, through the date hereof, or
has received extensions thereof; all taxes shown on such returns and all
assessments received by them have been paid, to the extent that the same
have become due, except where the failure to so file or pay could not have
a material adverse effect on the assets or properties, business, results of
operations, prospects or financial condition of the Company and the Bank,
taken as a whole.
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(t) The Shares have been duly authorized for quotation on the
National Association of Securities Dealers Automated Quotation ("NASDAQ")
National Market System, subject to official notice of issuance, and a
registration statement has been filed on Form 8-A pursuant to Section 12 of
the Exchange Act for the Shares, which registration statement complies in
all material respects with the Exchange Act.
(u) The Company will comply with all of the requirements and
file the required forms as specified in Florida Statutes Section 517.075 if
qualification of the Shares becomes necessary.
(v) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters under this Agreement are several and not joint. The
respective obligations of the Underwriters to purchase the Shares are subject to
each of the following terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(A)(a) of this Agreement.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives.
(c) The representations and warranties of the Company contained
in this Agreement and in the certificates delivered pursuant to Section
5(d) shall be true and correct when made and on and as of each Closing Date
as if made on such date and the Company shall have performed all covenants
and agreements and satisfied all the conditions contained in this Agreement
required to be performed or satisfied by it at or before such Closing Date.
(d) The Representatives shall have received on each Closing Date
a certificate, addressed to the Representatives and dated such Closing
Date, of the chief executive officer and the chief financial officer or
chief accounting officer of the Company, acting solely in their capacities
as executive officers of the Company, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that, to the best of their knowledge
after due inquiry, the representations and warranties of the Company in
this Agreement are true and correct on and as of such Closing Date with the
same effect as if made on such Closing Date and the Company has performed
all covenants and agreements and satisfied all conditions
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contained in this Agreement required to be performed or satisfied by it at
or prior to such Closing Date.
(e) The Representatives shall have received at the time this
Agreement is executed and on each Closing Date a signed letter from
Deloitte & Touche LLP addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date, in
form and substance reasonably satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Securities Act and the Rules, that the response to Item 10 of the
Registration Statement is correct insofar as it relates to them and stating
in effect that:
(i) in their opinion the audited financial statements
included in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and
the Rules;
(ii) on the basis of a reading of the amounts included in
the Registration Statement and the Prospectus under the headings
"Summary Consolidated Financial Data" and "Selected Consolidated
Financial Data," carrying out certain procedures (but not an
examination in accordance with generally accepted auditing
standards) 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
directors of the Company, 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
the date of the latest audited financial statements, except as
disclosed in the Registration Statement and the Prospectus, nothing
came to their attention which caused them to believe that:
(A) the amounts in "Summary Consolidated Financial
Data," and "Selected Consolidated Financial Data" included
in the Registration Statement and the Prospectus do not
agree with the corresponding amounts in the audited or
unaudited financial statements from which such amounts were
derived; or
(B) with respect to the Company, there were, at a
specified date not more than five business days prior to the
date of the letter, any increases in the long-term
liabilities of the Company or any decreases in net income or
the stockholders' equity in the Company, as compared with
the amounts shown on the Company's audited balance sheet for
the fiscal year ended December 31, 1996 or for the
comparable period in the prior year, as the case may be; and
(iii) they have performed certain other 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
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the general accounting records of the Company) set forth in the
Registration Statement and the Prospectus and reasonably specified
by the Representatives agrees with the accounting records of the
Company.
References to the Registration Statement and the Prospectus in this
paragraph (e) are to such documents as amended and supplemented at
the date of the letter.
(f) The Representatives shall have received on each Closing Date
from Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Xxxxxxx, P.A., counsel
for the Company, an opinion, addressed to the Representatives and dated
such Closing Date, and stating in effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Florida and its subsidiary, the Bank, has been duly
organized and is validly existing as a national banking association
under the laws of the United States. The Company and the Bank are
duly qualified and in good standing as foreign corporations in each
jurisdiction in which the character or location of their respective
assets or properties (owned, leased or licensed) or the nature of
their respective businesses makes such qualification necessary,
except for such jurisdictions where the failure to so qualify would
not have a material adverse effect on the assets or properties,
business, results of operations or financial condition of the
Company and the Bank, taken as a whole.
(ii) The Company and the Bank each have all requisite
corporate power and authority to own, lease and license their
assets and properties and conduct their businesses as now being
conducted and as described in the Registration Statement and the
Prospectus; and the Company has all requisite corporate power and
authority and all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits to enter into, deliver
and perform this Agreement and to issue and sell the Shares (other
than those required under the Securities Act, which have been
obtained, and state or foreign Blue Sky laws or as may be required
by the NASD in connection with the offering of the Shares by the
Underwriters, as to which no opinion need be expressed).
(iii) The Company has an authorized and issued capital stock
as set forth under the caption "Capitalization" in the Registration
Statement and the Prospectus as of the date indicated therein; the
certificates evidencing the Shares are in due and proper legal form
and have been duly authorized for issuance by the Company; all of
the outstanding shares of Common Stock of the Company have been
duly and validly authorized and issued and are fully paid and
nonassessable and, to such counsel's knowledge, none of them was
issued in violation of any preemptive or other similar right. The
Shares have been duly authorized and, when issued and sold pursuant
to this Agreement, will be duly and validly issued, fully paid and
nonassessable and, to such counsel's knowledge, none of them will
have been issued in violation of any preemptive or other similar
right contained
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in the Company's Articles or Bylaws or in any other agreement or
instrument known to such counsel. To such counsel's knowledge,
except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right
calling for the issuance of, and no commitment, plan or arrangement
to issue, any share of stock of the Company or any security
convertible into, exercisable for, or exchangeable for stock of the
Company. The Common Stock and the Shares conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(iv) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery
and performance of this Agreement and the issuance and sale of the
Shares. This Agreement has been duly and validly authorized,
executed and delivered by the Company. Neither the execution,
delivery and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby
(including, without limitation, the issuance and sale by the
Company of the Shares) will violate any provision of the Articles
or the Bylaws of the Company or the Bank.
(v) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
performance of this Agreement by the Company or the consummation of
the transactions contemplated hereby, except such as have been
obtained under the Securities Act and the Exchange Act and such as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
several Underwriters and the clearance of the offering with the
NASD.
(vi) The statements in the Prospectus under the captions
"Description of Capital Stock," "Business--Regulation" and "Certain
United States Tax Consequences to Non-United States Holders," to
the extent that such statements constitute a summary of documents
referred to therein or matters of law or legal conclusions, are
fair summaries in all material respects and accurately present the
information called for with respect to such documents and matters.
To such counsel's knowledge, there are no contracts or other
documents required to be filed as exhibits to, or described or
referred to in, the Registration Statement which have not been so
filed with the Commission or which are not fairly described or
referred to in the Registration Statement.
(vii) The Registration Statement and the Prospectus and each
amendment or supplement thereto (except for the financial
statements and other financial and statistical data included
therein, as to which such counsel expresses no opinion) comply as
to form in all material respects with the requirements of the
Securities Act and the Rules.
(viii) The Registration Statement has become effective under
the Securities Act, and to the best knowledge of such counsel no
stop order suspending the effectiveness of the Registration
Statement has been issued and no
13
proceedings for that purpose have been instituted or are
threatened, pending or contemplated.
(ix) The Company is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company, the
Bank and public officials and on the opinions of other counsel satisfactory
to the Representatives as to matters which are governed by laws other than
the laws of the State of Florida and the Federal laws of the United States;
PROVIDED that such counsel shall state that in their opinion the
Underwriters and they are justified in relying on such other opinions.
Copies of such certificates and other opinions shall be furnished to the
Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives, including Underwriters'
counsel, and representatives of the independent certified public
accountants of the Company, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
(relying as to materiality to a large extent upon the opinions and
representations of officers and other representatives of the Company), on
the basis of the foregoing, no facts have come to the attention of such
counsel which lead such counsel to believe that the Registration Statement
at the time the Registration Statement became effective (except with
respect to the financial statements and notes thereto and other financial
and statistical data contained therein, as to which such counsel need
express no opinion or belief) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus as amended or supplemented (except with respect to the financial
statements and notes thereto and other financial and statistical data
contained therein, as to which such counsel need make no statement or
express any opinion or belief) on the date thereof and on such Closing Date
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Notwithstanding the preceding sentence, the opinions expressed in (iii) and
(vi) above remain in effect and shall in no way be limited by the
foregoing.
(g) The Representatives shall have received on each Closing Date
from J. Xxxx Xxxxxxx, Esq., general counsel of the Company, an opinion,
addressed to the Representatives and dated such Closing Date, and stating
in effect that:
(i) Neither the execution, delivery and performance of
this Agreement by the Company nor the consummation of any of the
transactions contemplated
14
hereby (including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with
or result in the breach of any term or provision of, or constitute
a default (or any event which with notice or lapse of time, or
both, would constitute a default) under, or require consent or
waiver under, or result in the execution or imposition of any lien,
charge or encumbrance upon any properties or assets of the Company
or the Bank pursuant to the terms of, any indenture, mortgage, deed
of trust, note or other agreement or instrument of which such
counsel is aware and to which the Company or the Bank is a party or
by which the Company or the Bank or any of their properties or
businesses is bound, or any statute, rule or regulation or, to such
counsel's knowledge, any franchise, license, permit, judgment,
ruling, decree or order applicable to the Company, except for any
such termination, acceleration, conflict, breach, default, lien,
charge or encumbrance which would not, individually or in the
aggregate, have a material adverse effect on the assets or
properties, business, results of operations or financial condition
of the Company and the Bank, taken as a whole, and except for such
consents or waivers which have already been obtained and are in
full force and effect.
(ii) To such counsel's knowledge, no default exists, and no
event has occurred which with notice or lapse of time, or both,
would constitute a default, in the due performance and observance
of any term, covenant or condition by the Company or the Bank of
any indenture, mortgage, deed of trust, note or any other agreement
or instrument to which the Company or the Bank is a party or by
which it or any of their assets or properties or businesses may be
bound or affected, where the consequences of such default would
have a material and adverse effect on the assets, properties,
businesses, results of operations or financial condition of the
Company and the Bank, taken as a whole.
(iii) To such counsel's knowledge, neither the Company nor
the Bank is in violation of any term or provision of its Articles
or Bylaws or any franchise, license, permit, judgment, ruling,
decree, order, statute, rule or regulation, where the consequences
of such violation would have a material and adverse effect on the
assets, properties, businesses, results of operations or financial
condition of the Company and the Bank, taken as a whole.
(iv) Except as disclosed in the Registration Statement, to
such counsel's knowledge, there is no litigation or governmental or
other proceeding or investigation, before any court or before or by
any public body or board pending or which is required to be
disclosed in the Registration Statement or Prospectus by the Act
and the Rules, other than those described therein.
(v) To such counsel's knowledge, the Company and the Bank
are in compliance in all material respects with all laws
administered by and regulations of each Bank Regulatory Authority
with jurisdiction over the Company or the Bank, the failure to
comply with which would have a material adverse effect upon
15
the assets or properties, business, results of operations or
financial condition of the Company and the Bank, taken as a whole.
In addition, such counsel shall state that such counsel has
participated in conferences with other officers and other representatives
of the Company, representatives of the Representatives, including
Underwriters' counsel, and representatives of the independent certified
public accountants of the Company, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus, on
the basis of the foregoing, no facts have come to the attention of such
counsel which lead such counsel to believe that the Registration Statement
at the time the Registration Statement became effective (except with
respect to the financial statements and notes thereto and other financial
and statistical data contained therein, as to which such counsel need
express no opinion or belief) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus as amended or supplemented (except with respect to the financial
statements and notes thereto and other financial and statistical data
contained therein, as to which such counsel need make no statement or
express any opinion or belief) on the date thereof and on such Closing Date
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(h) The Representatives shall have received from each person who is
a director or officer of the Company or the Bank and each shareholder
(except those named in Schedule II hereto) an agreement, or each such
person shall be subject to an agreement, to the effect that such person
will not offer for sale, sell, contract to sell, distribute, transfer,
grant any option for the sale of, or otherwise dispose of, directly or
indirectly any equity securities (or any rights to purchase or acquire
equity securities) of the Company (or securities convertible into,
exercisable for, or exchangeable for equity securities of the Company)
owned by them for a period of 180 days after the date of the Prospectus,
without the prior written consent of Xxxxxxxxxxx & Co., Inc.
(i) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their counsel
and the Underwriters shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx a
favorable opinion, addressed to the Underwriters and dated such Closing
Date, with respect to the Shares, the Registration Statement and the
Prospectus, and such other related matters as the Representatives may
reasonably request, and the Company shall have furnished to Xxxxxxx Xxxxxxx
& Xxxxxxxx such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(j) If the Shares have been qualified for sale in Florida, the
Representatives shall have received on each Closing Date certificates,
addressed to the Representatives,
16
and dated such Closing Date, of an executive officer of the Company, acting
solely in his capacity as an executive officer of the Company, to the
effect that the signer of such certificate has reviewed and understands the
provisions of Section 517.075 of the Florida Statutes, and represents that,
to his knowledge after due inquiry, the Company has complied, and at all
times will comply, with all provisions of Section 517.075 and further, that
as of such Closing Date, neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees
as follows:
(a) The Company shall prepare the Prospectus in a form approved by
the Representatives and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement
and shall promptly advise the Representatives (i) when the Registration
Statement and any amendment thereto shall have become effective, (ii) of
any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (iii) of the
prevention or suspension of the use of any preliminary prospectus or the
Prospectus or 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 (iv) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representatives a copy for their review prior to filing and shall not file
any such proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any event
occurs as a result of which the Prospectus as then amended or 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 or supplement the Prospectus to comply with the
Securities Act or the Rules, the Company promptly shall prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 6(A), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such compliance.
(c) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 45 days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date occurs
(or 90 days if such 12-month period coincides with the Company's fiscal
year), an earnings statement (which need not be audited) of the
17
Company, covering such 12-month period, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) as
originally filed and to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and all amendments
thereof and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Securities Act or the Rules, as many copies
of any preliminary prospectus and the Prospectus and any amendments thereof
and supplements thereto as the Representatives may reasonably request.
(e) In the event it becomes necessary to qualify the Shares for
sale in various jurisdictions, the Company shall cooperate with the
Representatives and their counsel in endeavoring to qualify the Shares for
offer and sale under the laws of such jurisdictions as the Representatives
may designate, and shall maintain such qualifications in effect so long as
required for the distribution of the Shares; PROVIDED, HOWEVER, that the
Company shall not be required in connection therewith, as a condition
thereof, to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction or subject itself to
taxation as doing business in any jurisdiction in which it is not now so
qualified or subject.
(f) For a period of five years after the date of this Agreement,
the Company shall supply to the Representatives, and to each other
Underwriter who may so request in writing, copies of such financial
statements and other periodic and special reports as the Company may from
time to time distribute generally to the holders of any class of its
capital stock and to furnish to the Representatives a copy of each annual
or other report it shall be required to file with the Commission (including
the Report on Form SR required by Rule 463 of the Rules).
(g) Without the prior written consent of Xxxxxxxxxxx & Co., Inc.,
for a period of 180 days after the date of this Agreement, the Company and
each of its individual directors and officers shall not offer for sale,
sell, contract to sell, distribute, transfer, grant any option for the sale
of, or otherwise dispose of, directly or indirectly (other than on Form S-8
or on any successor form), or exercise any registration rights with respect
to, any equity securities of the Company (or any securities convertible
into, exercisable for or exchangeable for equity securities of the
Company), except for the issuance of the Shares pursuant to the
Registration Statement and the issuance of options pursuant to the
Company's Stock Option Plan as described in the Registration Statement and
the Prospectus. In the event that during this period, (i) any options are
issued pursuant to the Company's Stock Option Plan that are exercisable
during such 180-day period or (ii) any registration is effected on Form S-8
or on any successor form relating to options that are exercisable during
such 180-day period, the Company shall obtain the written agreement of such
grantee or holder of such registered securities that, for a period of 180
days after the date of this Agreement, such person will not, without the
prior written consent of Xxxxxxxxxxx & Co., Inc., offer for sale, sell,
distribute, grant any option for the sale of,
18
or otherwise dispose of, directly or indirectly, or exercise any
registration rights with respect to, any shares of Common Stock (or any
securities convertible into, exercisable for, or exchangeable for any
shares of Common Stock) owned by such person.
(h) On or before completion of this offering, the Company shall
make all filings required under applicable securities laws and by the
NASDAQ National Market System (including any required registration under
the Exchange Act).
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company under this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement including all
exhibits thereto, each preliminary prospectus, the Prospectus, all amendments
and supplements to the Registration Statement and the Prospectus, and the filing
and distribution of this Agreement; (ii) the preparation and delivery of
certificates for the Shares to the Underwriters; (iii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the various jurisdictions referred to in Section 6(A)(e), including the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith (in the event such registration and qualification become necessary)
and the preparation, printing, distribution and shipment of preliminary and
supplementary Blue Sky memoranda; (iv) the furnishing (including costs of
shipping and mailing) to the Representatives and to the Underwriters of copies
of each preliminary prospectus, the Prospectus and all amendments or supplements
to the Prospectus, and of the several documents required by this Section to be
so furnished, as may be reasonably requested for use in connection with the
offering and sale of the Shares by the Underwriters or by dealers to whom Shares
may be sold; (v) the filing fees of the National Association of Securities
Dealers, Inc. in connection with its review of the terms of the public offering;
(vi) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of all reports and information
required by Section 6(A)(f); (vii) inclusion of the Shares for quotation on the
NASDAQ National Market System; and (viii) all transfer taxes, if any, with
respect to the sale and delivery of the Shares by the Company to the
Underwriters. Subject to the provisions of Section 9, the Underwriters agree to
pay, whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the performance of
the obligations of the Underwriters under this Agreement not payable by the
Company pursuant to the preceding sentence, including, without limitation, the
fees and disbursements of counsel for the Underwriters.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they, or
any of them, may become subject under the Securities Act, the Exchange Act
or other Federal or state law
19
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that such indemnity shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities arising from the sale
of the Shares to any person by such Underwriter if such untrue statement or
omission or alleged untrue statement or omission was made in such
preliminary prospectus, the Registration Statement or the Prospectus, or
such amendment or supplement, in reliance upon and in conformity with
information furnished in writing to the Company by the Representatives on
behalf of any Underwriter specifically for use therein; and PROVIDED
FURTHER that as to any preliminary prospectus this indemnity agreement
shall not inure to the benefit of any Underwriter on account of any loss,
claim, damage or liability arising from the sale of Shares to any person by
that Underwriter if that Underwriter failed to send or give a copy of the
Prospectus (as the same may be amended a supplemented) to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of any material fact or omission or alleged
omission to state a material fact in such preliminary prospectus was
corrected in the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 6(d) of this Agreement. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each director of the Company, and each
officer of the Company who signs the Registration Statement, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only insofar as such losses, claims, damages or liabilities arise out of or
are based upon any untrue statement or omission or alleged untrue statement
or omission which was made in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment thereof or supplement thereto
with respect to information furnished in writing by or on behalf of such
Underwriter expressly for use in the Registration Statement or Prospectus
or any amendment or supplement thereto. The Company acknowledges that the
statements contained in the last paragraph on the outside front cover and
in the paragraph relating to stabilization on the inside front cover page
of the Prospectus and under the caption "Underwriting" in the Prospectus
constitute the only information furnished in writing by or on behalf of any
Underwriter expressly for use in the Registration Statement or Prospectus
or any amendment or supplement thereto.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers
20
served. No indemnification provided for in Section 7(a) or 7(b) shall be
available to any party who shall fail to give notice as provided in this
Section 7(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by
the failure to give such notice but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not relieve
it from any liability that it may have to any indemnified party for
contribution or otherwise than under this Section. In case any such
action, suit or proceeding shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof and the approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses, except as provided below and except
for the reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The indemnified
party shall have the right to employ its counsel in any such action, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such indemnified
party has been authorized in writing by the indemnifying parties, (ii) the
indemnified party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying parties and the indemnified
party in the conduct of the defense of such action (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party) or (iii) the indemnifying
parties shall not have employed counsel to assume the defense of such
action within a reasonable time after notice of the commencement thereof,
in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying parties. An indemnifying party shall not be
liable for any settlement of any action, suit, proceeding or claim effected
without its written consent which shall not be unreasonably withheld.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason is
held to be unavailable from the Company, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting any contribution received by any person
entitled hereunder to contribution from any persons who may be liable for
contribution) to which the Company and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Shares or, if such allocation is not permitted by applicable
law or indemnification is not available as a result of the indemnifying party
not having received notice as provided in Section 7 hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable
21
considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts but before deducting
expenses) received by the Company, as set forth in the table on the cover page
of the Prospectus, bear to (y) the underwriting discounts received by the
Underwriters, as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company or the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact related to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by PRO RATA allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 8, in no case shall any Underwriter (except as may be provided in the
agreement among underwriters) be liable or responsible for any amount in excess
of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder; PROVIDED, HOWEVER, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of the Section 15 of the Securities Act or Section 20
of the Exchange 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 immediately
preceding sentence of this Section 8. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section, notify such party
or parties from whom contribution may be sought, but the omission so to notify
such party or parties from whom contribution may be sought shall not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this Section. No party
shall be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to their
respective underwriting commitments and not joint.
9. TERMINATION. This Agreement may be terminated with respect to
the Shares to be purchased on a Closing Date by the Representatives by notifying
the Company at any time:
(a) in the absolute discretion of the Representatives at or before
any Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representatives will in the future materially disrupt,
the securities markets; (ii) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, inadvisable to proceed with the
offering; (iii) if there shall be such a material adverse change in general
financial, political or economic conditions or the effect
22
of international conditions on the financial markets in the United States
is such as to make it, in the judgment of the Representatives, inadvisable
or impracticable to market the Shares; (iv) if trading in the Shares has
been suspended by the Commission or trading generally on the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. or the NASDAQ National
Market System has been suspended or limited, or minimum or maximum ranges
for prices for securities shall have been fixed, or maximum ranges for
prices for securities have been required, by said exchanges or by order of
the Commission, the National Association of Securities Dealers, Inc., or
any other governmental or regulatory authority; or (v) if a banking
moratorium has been declared by any state or Federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions, the
Company shall not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (x) if this Agreement
is terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement or is terminated in accordance
with the provisions of this Section 9, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing their
obligations hereunder, (y) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement, without
some reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company
or to the other Underwriters for damages occasioned by its failure or refusal
and (z) the obligations of the parties pursuant to Sections 6(B), 7 and 8 of
this Agreement shall not be affected by the foregoing.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Representatives may deem advisable or one or more of the remaining Underwriters
may agree to purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; PROVIDED, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be
23
increased pursuant to this Section 10 by more than one-ninth of such number
of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company, except in both cases as provided in Sections 6(B),
7, 8 and 9. The provisions of this Section shall not in any way affect the
liability of any defaulting Underwriter to the Company or the nondefaulting
Underwriters arising out of such default. A substitute underwriter hereunder
shall become an Underwriter for all purposes of this Agreement.
11. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(B), 7, 8
and 9 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing, (a) if to the Representatives, c/o Oppenheimer & Co., Inc., Xxxxxxxxxxx
Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx X.
Xxxxx, and (b) if to the Company, to its agent for service as such agent's
address appears on the cover page of the Registration Statement.
24
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflict of
laws.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
XXXXXXXX BANCORP INC.
By: ______________________________
Name:
Title:
Confirmed:
XXXXXXXXXXX & CO., INC.
NATWEST SECURITIES LIMITED
Acting severally on behalf of themselves and as representatives of the several
Underwriters named in Schedule I annexed hereto.
XXXXXXXXXXX & CO., INC.
By: _____________________
Name:
Title:
25
NATWEST SECURITIES LIMITED
By: _____________________
Name:
Title:
SCHEDULE I
Number of
Firm Shares to
Underwriter Be Purchased
----------- ------------
Xxxxxxxxxxx & Co., Inc.
Natwest Securities Limited
__________________________ _________
Total 2,000,000
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