Exhibit 1
SEACOAST CAPITAL TRUST I
(a Delaware business trust)
1,800,000 Preferred Securities
[ ]% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
UNDERWRITING AGREEMENT
[ ], 2002
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Seacoast Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act of the State of Delaware (the "Delaware
Act"), and Seacoast Financial Services Corporation, a Massachusetts corporation
(the "Company"), as depositor of the Trust and as guarantor (the Trust and the
Company are referred to collectively as the "Offerors"), hereby confirm their
agreement with Xxxx, Xxxx & Co., LLC and [ ] (together, the "Underwriters"),
with respect to the issue and sale by the Trust and the purchase by the
Underwriters of 1,800,000 (the "Initial Securities") of the Trust's [ ]%
Cumulative Trust Preferred Securities (the "Preferred Securities"). The Trust
and the Company also propose to issue and sell to the Underwriters, at the
Underwriters option, up to an additional 270,000 Preferred Securities (the
"Option Securities") as set forth herein. The term "Preferred Securities" as
used herein, unless indicated otherwise, shall mean the Initial Securities and
the Option Securities.
The Preferred Securities and the Common Securities (as defined herein)
are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement, to be dated as of the Closing Time (as defined in Section 2 hereof)
(the "Trust Agreement"), among the Company, as depositor, State Street Bank and
Trust (the "Trust Company"), a Massachusetts banking corporation, as property
trustee (the "Property Trustee"), Wilmington Trust Company (Delaware), a
Delaware banking corporation, as Delaware trustee (the "Delaware Trustee"), and
[ ], an individual, [ ], an individual, and [ ], an individual (the
"Administrative Trustees" and, together with the Property Trustee and the
Delaware Trustee, the "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 to the extent provided in the Guarantee Agreement, to
be dated as
of the Closing Time (the "Guarantee Agreement"), between the Company and the
Trust Company, as trustee (the "Guarantee Trustee"), with respect to
distributions and payments upon liquidation, redemption and otherwise. The
assets of the Trust will consist of [ ]% subordinated debentures due June 30,
2032 (the "Debentures") of the Company which will be issued under the Indenture
to be dated as of the Closing Time (the "Indenture"), between the Company and
the Trust Company, as trustee (the "Indenture Trustee"). The Company has agreed
to pay all costs, expenses and liabilities of the Trust payable to third
parties, with certain exceptions, pursuant to the Agreement as to Expenses and
Liabilities, to be dated as of the Closing Time, between the Company and the
Trust (the "Expense Agreement"). Under certain circumstances, the Debentures
will be distributable to the holders of undivided beneficial interests in the
assets of the Trust. 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 the Trust's common securities (the "Common Securities") and
will be used by the Trust to purchase an equivalent amount of the Debentures.
The initial public offering price for the Preferred Securities, the
purchase price to be paid by the Underwriters for the Preferred Securities, the
commission per Preferred Security to be paid by the Company to the Underwriters
and the rate of interest to be paid on the Preferred Securities shall be agreed
upon by the Company and the Underwriters, and such agreement shall be set forth
in a separate written instrument substantially in the form of EXHIBIT A hereto
(the "Price Determination Agreement"). The Price Determination Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Underwriters and shall specify such applicable
information as is indicated in EXHIBIT A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File Nos.
333-[ ] and 333-[ ]-01) covering the registration of the Preferred Securities,
the Guarantee and the Debentures under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses,
and, if such registration statement has not become effective, the Company will
prepare and file, prior to the effective date of such registration statement, an
amendment to such registration statement, including a final prospectus. Each
prospectus used before the time such registration statement becomes effective is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits thereto and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it becomes
effective, is herein called the "Registration Statement," and the prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, included in the Registration Statement at the time
it becomes effective is herein called the "Prospectus," except that, if any
revised prospectus provided to the Underwriters by the Company for use in
connection with the offering of the Preferred Securities differs from the
prospectus included in the Registration Statement at the time it becomes
effective (whether or not such prospectus is required to be filed pursuant to
Rule 424(b) under the 1933 Act ("Rule 424(b)"), the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first furnished
to the Underwriters for such use.
-2-
The Company understands that the Underwriters propose to make a public
offering of the Preferred Securities (the "Offering") as soon as possible after
the Registration Statement becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Preferred Securities.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to and
agree with the Underwriters that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and, when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below (and, with respect to the Option
Securities, up to the Option Closing Date referred to below), (A) the
Registration Statement and any amendments and supplements thereto will
comply in all material respects with the requirements of the 1933 Act
and the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"); (B) neither the Registration Statement nor any
amendment or supplement thereto will contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and (C)
neither the Prospectus nor any amendment or supplement thereto will
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Offerors by the Underwriters
expressly for use in the Registration Statement or the Prospectus, or
any information contained in any Form T-1 which is an exhibit to the
Registration Statement. The statements contained under the caption
"Underwriting" in the Prospectus constitute the only information
furnished to the Offerors in writing by the Underwriters expressly for
use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read together and
with the other information in the Prospectus, at the time the
Registration Statement becomes effective and at all times subsequent
thereto up to the Closing Time, will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, in each case after excluding any statement that does not
constitute a part of the Registration Statement or the Prospectus
pursuant to Rule 412 of the 1933 Act Regulations.
(iii) Xxxxxx Xxxxxxxx LLP, who are reporting upon the audited
financial statements included or incorporated by reference in the
Registration Statement, are
-3-
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The consolidated financial statements, audited and
unaudited (including the notes thereto), included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise stated therein. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial, pro forma and statistical data included in the
Prospectus are accurate in all material respects and present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited and unaudited consolidated financial
statements included or incorporated by reference in the Registration
Statement.
(v) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the United States of
America with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Prospectus. Each direct and indirect subsidiary of the Company
is an entity duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of organization with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business. The Company and each of its
direct and indirect subsidiaries is duly qualified to transact business
as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(vi) The Company is duly registered with the Board of
Governors of the Federal Reserve System as a bank holding company under
the Bank Holding Company Act of 1956, as amended ("HOLA"); each
subsidiary of the Company that conducts business as a bank is duly
authorized to conduct such business in each jurisdiction in which such
business is currently conducted; and the deposit accounts of Compass
Bank for Savings and Nantucket Bank (each, a "Bank" and collectively
the "Banks") are insured by the Savings Association Insurance Fund of
the Federal Deposit Insurance Corporation (the "FDIC") up to the
maximum allowable limits thereof. The Offerors have all such power,
authority, authorization, approvals and orders as may be required to
enter into this Agreement, to carry out the provisions and conditions
hereof and to issue and sell the Preferred Securities and the
Debentures.
(vii) Compass Bank for Savings is a savings bank duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts with corporate power and authority under
such laws to own, lease and operate its
-4-
properties and conduct its business; Nantucket Bank is a savings bank
duly organized, validly existing and in good standing under the laws of
the Commonwealth of Massachusetts with corporate power and authority
under such laws to own, lease and operate its properties and conduct
its business; each Bank is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of
the Company and its subsidiaries, considered as one enterprise. All of
the outstanding shares of capital stock of each Bank and each of the
Company's other subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by the
Company directly or indirectly, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind.
(viii) Except for the Banks and the Trust, the Company does
not have any "significant subsidiaries" as defined in Rule 1-02 of
Regulation S-X of the Commission.
(ix) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization." The capital stock of the Company and the
Debentures conform in all material respects to the description thereof
contained or incorporated by reference in the Prospectus and such
description conforms in all material respects to the rights set forth
in the instruments defining the same.
(x) This Agreement has been duly authorized, executed and
delivered by the Offerors and, when duly executed by the Underwriters,
will constitute the valid and binding agreement of the Offerors
enforceable against the Offerors in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Guarantee Agreement, the Debentures, the Trust
Agreement, the Expense Agreement and the Indenture have each been duly
authorized and, when duly executed and delivered by the Company and, in
the case of the Guarantee, by the Guarantee Trustee, in the case of the
Trust Agreement, by the Trustees, and in the case of the Indenture, by
the Indenture Trustee, will constitute the valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their respective terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or general equitable principles. The Debentures are
entitled to the benefits of the Indenture, and the Guarantee Agreement,
the Debentures, the Trust Agreement, the Expense Agreement and the
Indenture conform in all material respects to the descriptions thereof
in the Prospectus. The Trust Agreement, the Guarantee Agreement and the
Indenture have been duly qualified under the Trust Indenture Act of
1939, as amended (the "TIA").
(xi) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Act
with the power and authority to
-5-
own, lease and operate its properties and conduct its business as
described in the Prospectus. The Trust has conducted no business to
date, and it will conduct no business in the future that would be
inconsistent with the description of the Trust set forth in the
Prospectus. The Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and the
agreements and instruments contemplated by the Trust Agreement or
described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in
the Prospectus; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature.
(xii) The Preferred Securities have been duly and validly
authorized by the Trust for issuance and sale to the Underwriters
pursuant to this Agreement and, when executed and authenticated in
accordance with the terms of the Trust Agreement and delivered by the
Trust to the Underwriters pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued, fully paid
and non-assessable and will constitute valid and legally binding
obligations of the Trust enforceable in accordance with their terms and
entitled to the benefits provided by the Trust Agreement. The Preferred
Securities conform in all material respects to the description thereof
in the Prospectus, and such description conforms in all material
respects to the rights set forth in the instruments defining the same;
the holders of the Preferred Securities will be 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; and the issuance of the Preferred Securities is
not subject to any preemptive or other similar rights.
(xiii) The Common Securities have been duly and validly
authorized by the Trust and, upon delivery by the Trust to the Company
against payment therefor as described in the Prospectus, will be duly
and validly issued and fully paid undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the
description thereof in the Prospectus, and such description conforms in
all material respects to the rights set forth in the instruments
defining the same; the issuance of the Common Securities is not subject
to any preemptive or other similar rights; and at the Closing Time, all
of the issued and outstanding Common Securities of the Trust will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xiv) The issuance and sale of the Preferred Securities and
the Common Securities by the Trust, the compliance by the Trust with
all of the provisions of this Agreement, the purchase of the Debentures
by the Trust, and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, the Trust
Agreement or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Trust or
any of its properties; and no consent, approval, authorization, order,
license, certificate, permit, registration or qualification of or with
any such court or other governmental agency or body is required to be
obtained by the Trust for the issue and sale of the Preferred
Securities and the Common Securities by the Trust, the purchase of the
Debentures by the Trust or the consummation by the Trust of
-6-
the transactions contemplated by this Agreement and the Trust
Agreement, except for such consents, approvals, authorizations,
licenses, certificates, permits, registrations or qualifications as
have already been obtained, or as may be required under the 1933 Act or
the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations,
state securities laws or the TIA.
(xv) The issuance by the Company of the Guarantee and the
Debentures, the compliance by the Company with all of the provisions of
this Agreement, the execution, delivery and performance by the Company
of the Trust Agreement, the Debentures, the Guarantee Agreement, the
Expense Agreement and the Indenture, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, loan agreement, mortgage,
deed of trust or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the articles
of incorporation, charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or any of their respective properties,
except in any case for such conflicts, breaches, defaults or violations
that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as
one enterprise, and would not prohibit or otherwise adversely affect
the ability of the Company to complete the transactions contemplated
thereby; and no consent, approval, authorization, order, license,
certificate, permit, registration or qualification of or with any such
court or other governmental agency or body is required for the issue of
the Guarantee and the Debentures or the consummation by the Company of
the other transactions contemplated by this Agreement, except for such
consents, approvals, authorizations, licenses, certificates, permits,
registrations or qualifications as have already been obtained, or as
may be required under the 1933 Act or the 1933 Act Regulations, the
1934 Act or the 1934 Act Regulations, state securities laws or the TIA.
(xvi) The Trust has not engaged in any activity that would
result in the Trust being, and after giving effect to the offering and
sale of the Preferred Securities the Trust will not be, an "investment
company," or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xvii) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid
and non-assessable, and are not subject to the preemptive rights of any
stockholder of the Company.
(xviii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
-7-
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock.
Neither the Company, the Banks nor any other subsidiary has any
material liability of any nature, contingent or otherwise, except as
set forth in the Prospectus.
(xix) Neither the Company, the Banks nor any other subsidiary
is in violation of any provision of its articles of organization,
charter or bylaws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or to
which any of its properties may be subject, except for such defaults
that, individually or in the aggregate, would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xx) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company, the Banks or
any other subsidiary that is required to be disclosed in the Prospectus
or that could reasonably be expected to result in any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably be
expected materially and adversely to affect the properties or assets of
the Company and its subsidiaries, considered as one enterprise, or that
could reasonably be expected materially and adversely to affect the
consummation of the transactions contemplated in this Agreement; all
pending legal or governmental proceedings to which the Company, the
Banks or any other subsidiary is a party that are not described in the
Prospectus, including ordinary routine litigation incidental to its
business, if decided in a manner adverse to the Company, would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxi) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xxii) Each of the Company and its direct and indirect
subsidiaries, including the Banks, has good and marketable title to all
properties and assets described in the Prospectus as owned by it, free
and clear of all liens, charges, encumbrances or restrictions, except
such as (A) are described in the Prospectus or (B) are neither material
in amount nor materially significant in relation to the business of the
Company and its subsidiaries, considered as one enterprise; all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise are in full force and
effect, and neither the Company, the Banks nor any other subsidiary has
-8-
any notice of any material claim that has been asserted by anyone
adverse to the rights of the Company, the Banks or any other subsidiary
under any such lease or sublease or affecting or questioning the rights
of such corporation to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxiii) Each of the Company and its direct and indirect
subsidiaries, including each Bank, owns, possesses or has obtained all
material governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations necessary to own or lease,
as the case may be, and to operate its properties and to carry on its
business as presently conducted, and neither the Company, each Bank nor
any other subsidiary has received any notice of any restriction upon,
or any notice of proceedings relating to revocation or modification of,
any such licenses, permits, certificates, consents, orders, approvals
or authorizations.
(xxiv) No labor problem with the employees of the Company, the
Banks or any other subsidiary exists or, to the best knowledge of the
Company, is imminent that could materially adversely affect the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its, the Banks'
or any other subsidiary's principal suppliers, contractors or customers
that could reasonably be expected to materially adversely affect the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xxv) Except as disclosed in the Prospectus, there are no
persons with registration or other similar rights to have any
securities of the Company registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xxvi) Except as disclosed in the Prospectus, the Company and
its direct and indirect subsidiaries, including the Banks, own or
possess all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets or other unpatented and/or
unpatentable proprietary or confidential information systems or
procedures), trademarks, service marks and trade names (collectively,
"patent and proprietary rights") currently employed by them in
connection with the business now operated by them except where the
failure to own, possess or acquire such patent and proprietary rights
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of
the Company and its subsidiaries, considered as one enterprise. Neither
the Company, the Banks nor any other subsidiary has received any notice
or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any patent or proprietary rights, and
which infringement or conflict (if the subject of any unfavorable
decision, rule and refinement, singly or in the aggregate) could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
-9-
(xxvii) The Company and each subsidiary of the Company have
filed all federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments of all taxes
due and payable in respect of such returns, and no material deficiency
has been asserted with respect thereto by any taxing authority.
(xxviii) The Preferred Securities have been approved for
inclusion in the Nasdaq National Market.
(xxix) The Company has filed with the NASD all documents and
notices required by the NASD of companies that have issued securities
that are traded in the over-the-counter market and quotations for which
are reported by the Nasdaq National Market.
(xxx) Neither the Trust, the Company, the Banks nor any other
subsidiary has taken or will take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or
manipulation, under the Exchange Act or otherwise, of the price of the
Preferred Securities.
(xxxi) Neither the Company, the Banks nor any other subsidiary
is or has been (by virtue of any action, omission to act, contract to
which it is a party or by which it is bound, or any occurrence or state
of facts whatsoever) in violation of any applicable foreign, federal,
state, municipal or local statutes, laws, ordinances, rules,
regulations and/or orders issued pursuant to foreign, federal, state,
municipal or local statutes, laws, ordinances, rules, or regulations
(including those relating to any aspect of banking, bank holding
companies, consumer credit, truth-in-lending, usury, currency
transaction reporting, environmental protection, occupational safety
and health and equal employment practices) heretofore or currently in
effect, except such violations that have been fully cured or satisfied
without recourse or that in the aggregate will not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxxii) Neither the Company, the Banks nor any other
subsidiary has any agreement or understanding with any person (A)
concerning the future acquisition by the Company or the Bank of a
controlling interest in any entity or (B) concerning the future
acquisition by any person of a controlling interest in the Company, the
Banks or any other subsidiary, in either case that is required by the
1933 Act or the 1933 Act Regulations to be disclosed by the Company
that is not disclosed in the Prospectus.
-10-
(b) Any certificate signed by any authorized officer of the Company or
the Bank and delivered to the Underwriters or to counsel for the Underwriters
pursuant to this Agreement shall be deemed a representation and warranty by the
Company to the Underwriters as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to the Underwriters, and the Underwriters agree to purchase from the Trust,
1,800,000 Initial Securities at the purchase price and terms set forth herein
and in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
hereby grants an option to the Underwriters to purchase up to an additional
270,000 Preferred Securities in accordance with the terms set forth herein and
in the Price Determination Agreement. The option hereby granted will expire at
5:00 p.m. on the 30th day after the date the Registration Statement is declared
effective by the Commission (or at 5:00 p.m. on the next business day following
the 30th day if such 30th day is not a business day) and may be exercised,
solely for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by the Underwriters to the Company setting forth the number of Option
Securities as to which the Underwriters are exercising the option and the time,
date and place of payment and delivery for the Option Securities. Such time and
date of delivery (the "Option Closing Date") shall be determined by the
Underwriters but shall not be later than five full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, nor earlier than the second business day after the date on which the
notice of the exercise of the option shall have been given.
(b) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the offices of Xxxxxxx Xxxxxxxx &
Xxxx, 0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, XX 00000, or at such
other place as shall be agreed upon by the Company and the Underwriters, at
10:00 a.m. on the third full business day after the effective date of the
Registration Statement, or at such other time not earlier than three nor more
than ten full business days thereafter as the Underwriters and the Company shall
determine (such date and time of payment and delivery being herein called the
"Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned office of Xxxxxxx Xxxxxxxx & Wood, or at such other place as
shall be agreed upon by the Company and the Underwriters, on the Option Closing
Date as specified in the notice from the Underwriters to the Company. Payment
for the Initial Securities and the Option Securities, if any, shall be made to
the Company by wire transfer of immediately available funds, against delivery to
the Underwriters for the account of the Underwriters of Preferred Securities to
be purchased by it.
(c) The Preferred Securities shall be issued in the form of one or more
fully registered global securities (the "Global Securities") in book-entry form
in such denominations and registered in the name of the nominee of The
Depository Trust Company ("DTC") or in such names as the Underwriters may
request in writing at least one business day before the Closing
-11-
Date or the Option Closing Date, as the case may be. The Global
Securities representing the Initial Securities or the Option Securities
to be purchased will be made available for examination by the
Underwriters and counsel to the Underwriters not later than 10:00 a.m.
on the business day prior to the Closing Time or the Option Closing
Date, as the case may be.
Section 3. CERTAIN COVENANTS OF THE OFFERORS. Each of the Offerors
covenants jointly and severally with the Underwriters as follows:
(a) The Offerors will use their best efforts to cause the Registration
Statement to become effective and will notify the Underwriters immediately, and
confirm the notice in writing, (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request of the Commission to amend the Registration Statement or amend or
supplement the Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Preferred Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes. The
Offerors will use every reasonable effort to prevent the issuance of any such
stop order or of any order preventing or suspending such use and, if any such
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the
Registration Statement or, if the Offerors have elected to rely upon Rule 430A
of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the
Prospectus (including documents incorporated by reference into the Registration
Statement or the Prospectus) of which the Underwriters shall not previously have
been advised and furnished a copy, or to which the Underwriters or counsel for
the Underwriters shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriters as
many signed and conformed copies of the Registration Statement as originally
filed and of each amendment thereto, whether filed before or after the
Registration Statement becomes effective, copies of all exhibits and documents
filed therewith (including documents incorporated by reference into the
Prospectus pursuant to Item 12 of Form S-3 under the 0000 Xxx) and signed copies
of all consents and certificates of experts as the Underwriters may reasonably
request.
(d) The Offerors will deliver or cause to be delivered to the
Underwriters, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriters may reasonably request, and the Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will deliver
or cause to be delivered to the Underwriters, without charge, as soon as the
Registration Statement shall have become effective (or, if the Offerors have
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested by the Underwriters during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as supplemented or amended) as the Underwriters may
reasonably request.
-12-
(e) The Company will comply to the best of its ability with the 1933
Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations,
so as to permit the completion of the distribution of the Preferred Securities
as contemplated in this Agreement and in the Prospectus. If, at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Preferred Securities, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or counsel for the Offerors, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading, in light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b) hereof, such amendment or supplement as may be necessary
to correct such untrue statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the
Underwriters, to qualify the Preferred Securities and the Debentures for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Underwriters may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; PROVIDED, HOWEVER, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Preferred Securities have been
qualified as above provided.
(g) The Company will make generally available (within the meaning of
Rule 158 of the 1933 Act Regulations ("Rule 158") to the holders of the
Preferred Securities and the Underwriters as soon as practicable, but not later
than 90 days after the close of the period covered thereby, an earnings
statement of the Company and its subsidiaries (in form complying with the
provisions of Rule 158) covering a period of at least 12 months beginning after
the effective date of the Registration Statement but not later than the first
day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the issuance by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of Debentures from the Company. The Company and the Bank will use the net
proceeds received by them from the sale of the Debentures in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when a prospectus is required by
the 1933 Act to be delivered in connection with sales of Preferred Securities,
will file promptly all documents required to be filed with the Commission
pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the
Registration Statement becomes effective.
-13-
(j) For a period of five years after the Closing Time, the Company will
furnish to the Underwriters copies of all annual reports, quarterly reports and
current reports filed by the Company with the Commission and such other
documents, reports, proxy statements and information as shall be furnished by
the Company to its stockholders generally.
(k) The Company will provide to the holders of the Preferred Securities
annual reports containing financial statements audited by the Company's
independent auditors and, provided the Company continues to be subject to the
Securities Exchange Act of 1934, upon written request, the Company's annual
reports on Form 10-K.
(l) The Offerors will file with the NASD all documents and notices
required by the NASD of companies that have issued securities that are traded in
the over-the-counter market and quotations for which are reported by the Nasdaq
Stock Market.
(m) The Company shall pay the legal fees and related filing fees of
Xxxxxxx Xxxxxxxx & Xxxx, counsel to the Underwriters, to prepare one or more
"blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the
offering of the Preferred Securities as contemplated by the Prospectus and a
copy of such Blue Sky Survey or surveys shall be delivered to each of the
Company and the Underwriters.
(n) If, at the time the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A, then
the Offerors will prepare, and file or transmit for filing with the Commission
in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus
or, if required by Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus) containing all information so
omitted.
(o) The Company will, at its expense, subsequent to the issuance of the
Preferred Securities, prepare and distribute to the Underwriters and counsel to
the Underwriters copies of the documents used in connection with the issuance of
the Preferred Securities.
(p) The Offerors will not, prior to the Option Closing Date or thirty
(30) days after the date of this Agreement, whichever occurs first, incur any
material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K of the Commission, except as
contemplated by the Prospectus.
(q) During a period of thirty (30) days from the date of the
Prospectus, neither the Trust nor the Company will, without the prior written
consent of the Underwriters, directly or indirectly, offer, sell, offer to sell,
or otherwise dispose of any Preferred Securities, any other beneficial interests
in the assets of the Trust, or any preferred securities or other securities of
the Trust or the Company that are substantially similar to the Preferred
Securities, including any guarantee of such securities. The foregoing sentence
shall not apply to any of the Preferred Securities to be sold hereunder.
-14-
Section 4. PAYMENT OF EXPENSES.
(a) The Offerors jointly and severally will pay and bear all costs and
expenses incident to the performance of its and the Trust's obligations under
this Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, all amendments thereto, all preliminary
prospectuses, the Prospectus and any amendments or supplements thereto, and the
cost of furnishing copies thereof to the Underwriters, (b) the preparation,
printing and distribution of this Agreement, the Preferred Securities and the
Blue Sky Survey, (c) the issuance and delivery of the Preferred Securities to
the Underwriters, including any transfer taxes payable upon the sale of the
Preferred Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) Nasdaq Stock Market filing fees, (f) fees
and disbursements of Xxxxxxx Xxxxxxxx & Xxxx in connection with the Blue Sky
Survey, (g) the qualification of the Preferred Securities under the applicable
securities laws in accordance with Section 3(f) hereof, (h) any filing fee for
review of the Offering by the NASD, (i) the legal fees and expenses of the
Underwriters' counsel not to exceed $75,000 without the Company's prior
approval, and general out-of-pocket expenses of the Underwriters, (j) the fees
and expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee, in connection with the Indenture and the
Debentures; (k) the fees and expenses of the Property Trustee and Delaware
Trustee, including the fees and disbursements of counsel for the Property
Trustee and the Delaware Trustee, in connection with the Trust Agreement and the
Certificate of Trust, and (l) all other costs incident to the performance of the
Offerors' obligations hereunder.
(b) If (i) the Closing Time does not occur on or before June 30, 2002,
(ii) the Company abandons or terminates the Offering, or (iii) this Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or
9(a), the Company shall reimburse the Underwriters for their reasonable
out-of-pocket accountable expenses actually incurred, as set forth in this
Section 4, including the reasonable fees and disbursements of counsel for the
Underwriters, subject to the limitations in Section 4(a) above.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Preferred Securities that it has
agreed to purchase pursuant to this Agreement are subject to the accuracy of the
representations and warranties of the Offerors contained herein or in
certificates of the officers or trustees of the Offerors or any subsidiary
delivered pursuant to the provisions hereof, to the execution of the Price
Determination Agreement no later than 5:30 p.m. on the first business day
following the date hereof, or at such later time as the Underwriters may agree
in writing (in the Underwriters' sole discretion), to the performance by the
Offerors of their respective obligations hereunder and to the following further
conditions:
(a) The Registration Statement shall have become effective not later
than 4:00 p.m. on the first business day following the date hereof, or at such
later time or on such later date as the Underwriters may agree to in writing; at
the Closing Time, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall be pending or, to the Underwriters' knowledge or the knowledge of
the Offerors, shall be contemplated by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the
-15-
satisfaction of counsel for the Underwriters. If the Offerors have elected to
rely upon Rule 430A, a prospectus containing the information required by Rule
430A shall have been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, the Underwriters shall have received:
(i) The favorable opinion, dated as of the Closing Time, of
Xxxxx Xxxx & Xxxxx LLP ("Xxxxx Xxxx"), counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters,
substantially in the form set forth in EXHIBIT B.
(ii) The favorable opinion, dated as of the Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the
Offerors, in form and substance satisfactory to counsel for the
Underwriters, substantially in the form set forth in EXHIBIT C.
(iii) The favorable opinion, dated as of the Closing Time, of
[ ], counsel for the Trust Company, in form and substance satisfactory
to counsel for the Underwriters, substantially in the form set forth in
EXHIBIT D.
(iv) The favorable opinion, dated as of the Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for the
Delaware Trustee, in form and substance satisfactory to counsel for the
Underwriters, substantially in the form set forth in EXHIBIT E.
(v) The favorable opinion, dated as of the Closing Time, of
Xxxxxxx Xxxxxxxx & Wood, counsel for the Underwriters, in form and
substance satisfactory to the Underwriters.
In giving such opinions, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States of America and the laws of Delaware in the case of Xxxxxxxx, Xxxxxx &
Finger, P.A. upon opinions of other counsel, who shall be counsel satisfactory
to counsel for the Underwriters, in which case the opinion shall state that such
counsel believes that it, the Underwriters and the Underwriters' counsel are
entitled to so rely upon the opinions of such other counsel. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers or
trustees of the Company, the Banks and the Trust and certificates of public
officials.
(c) At the Closing Time and again at the Option Closing Date, (i) the
Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and shall conform in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations, the Offerors shall have complied in all material respects with Rule
430A (if they shall have elected to rely thereon), and neither the Registration
Statement nor the Prospectus, as they may then be amended or supplemented, shall
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
-16-
statements therein not misleading; (ii) there shall not have been, since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business; (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Offerors, threatened against
the Company or any subsidiary or the Trust that would be required to be set
forth in the Prospectus that is not set forth therein, and no proceedings shall
be pending or, to the knowledge of the Offerors, threatened against either of
the Offerors or any subsidiary of the Company before or by any federal, state or
other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding would materially adversely affect the condition
(financial or otherwise), earnings, business affairs, assets or business
prospects of the Company and its subsidiaries, considered as one enterprise,
other than as set forth in the Prospectus; (iv) each of the Offerors shall have
complied, in all material respects, with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time or Option Closing Date, as applicable; (v) the other representations and
warranties of the Offerors set forth in Section l(a) hereof shall be accurate in
all material respects as though expressly made at and as of the Closing Time or
Option Closing Date, as applicable; and (vi) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose been initiated or, to the best knowledge of the
Offerors, threatened by the Commission. At the Closing Time, the Underwriters
shall have received a certificate of the Chairman of the Board or the President
and the Chief Financial Officer or the Controller of the Company, dated as of
the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company, the
Underwriters shall have received from Xxxxxx Xxxxxxxx LLP a letter or letters,
dated such date, in form and substance satisfactory to the Underwriters,
confirming that they are independent certified public accountants with respect
to the Company within the meaning of the 1933 Act and the 1933 Act Regulations,
and stating in effect that, with respect to the Company:
(i) in their opinion, the consolidated financial statements as
of December, 2001 and 2000, and for each of the years in the three year
period ended December, 2001 and the related financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their opinions
included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations;
(ii) on the basis of procedures (but not an audit in
accordance with generally accepted accounting standards) specified by
the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, INTERIM
FINANCIAL INFORMATION, including a reading of the latest available
unaudited interim consolidated financial statements of the Company, a
reading of the minutes of all meetings of the Board of Directors of the
Company and the Bank and of the Audit and Executive Committees of the
Board of Directors of the Bank since March 31, 2002, inquiries of
certain officials of the Company and its subsidiaries responsible for
financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
-17-
(A) the unaudited interim consolidated financial
information included or incorporated by reference in the
Prospectus, if any, do not comply as to form in all material
respects with applicable accounting requirements of the 1933
Act, or are not presented in conformity with generally
accepted accounting principles applied on a basis consistent
with that of the audited financial statements included in the
Prospectus;
(B) at a specified date not more than three business
days prior to the date of this Agreement, there was any
increase in total borrowings, real estate owned or Federal
Home Loan Bank advances of the Company and its consolidated
subsidiaries or any decrease in total assets, total deposits
or stockholders' equity of the Company and its consolidated
subsidiaries, any increase in the number of outstanding shares
of capital stock of the Company and its consolidated
subsidiaries or any increase or decrease in loan loss
allowance of the Company and its consolidated subsidiaries, in
each case as compared with amounts shown in the financial
statements at September 30, 2001 included in the Registration
Statement, except in all cases for changes, increases or
decreases that the Registration Statement discloses have
occurred or may occur; or
(C) for the period from April 1, 2002 to a specified
date not more than three business days prior to the date of
this Agreement, there was any decrease in consolidated net
interest income, non-interest income, net income or net income
per share or any increase in the consolidated provision for
loan losses, in each case as compared with a period of
comparable length in the preceding year, except in all cases
for changes, increases or decreases that the Registration
Statement discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement
(including the Selected Consolidated Financial Data) (having compared
such items with, and have found such items to be in agreement with, the
financial statements of the Company or general accounting records of
the Company, as applicable, which are subject to the Company's internal
accounting controls or other data and schedules prepared by the Company
from such records).
(e) At the Closing Time, the Underwriters shall have received from
Xxxxxx Xxxxxxxx LLP a letter, in form and substance satisfactory to the
Underwriters and dated as of the Closing Time, reaffirming the statements made
in the letter(s) furnished pursuant to Section 5(d) hereof, except that the
inquiries specified in Section 5(d) hereof shall be made based upon the latest
available unaudited interim consolidated financial statements and the specified
date referred to shall be a date not more than three days prior to the Closing
Time.
(f) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may request
for the purpose of enabling them to pass upon the issuance and sale of the
Preferred Securities as contemplated in this Agreement and the matters referred
to in Section 5(c) hereof and in order to evidence the
-18-
accuracy and completeness of any of the representations, warranties or
statements of the Offerors, the performance of any of the covenants of the
Offerors or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company at or prior to the Closing Time in connection
with the authorization, issuance and sale of the Preferred Securities and the
Debentures as contemplated in this Agreement shall be satisfactory in form and
substance to the Underwriters and to counsel for the Underwriters.
(g) Between the date of this Agreement and the Closing Time, (i) no
downgrading shall have occurred in the rating accorded any securities of the
Company or any deposit instruments of the Banks by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) of the 1933 Act Regulations and (ii) no such
organization shall have given any notice of any intended or potential
downgrading or of any surveillance or review, with possible negative
implications, of its rating of any of the Company's securities or any deposit
instruments of the Banks.
(h) The Company shall have paid, or made arrangements satisfactory to
the Underwriters for the payment of, all such expenses as may be required by
Section 4 hereof.
(i) The Preferred Securities, the Guarantee and the Debentures shall
have been qualified or registered for sale, or subject to an available exemption
from such qualification or registration, under the "blue sky" or securities laws
of such jurisdictions as shall have been reasonably specified by the
Underwriters.
(j) At the Closing Time, the Preferred Securities shall have been
approved for listing on NASDAQ.
(k) The NASD shall have confirmed that it has not raised any objection
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(l) At any time prior to Closing Time, (i) there shall not have
occurred any domestic or international event or act or occurrence that has
caused, or in the Underwriters' reasonable judgment will in the immediate future
cause, any material adverse change or disruption in the financial markets in the
United States or elsewhere or any outbreak of hostilities, escalation of
existing hostilities or declaration of national emergency in the United States
or other calamity or crisis the effect of which, in the reasonable judgment of
the Underwriter, is so material and adverse as to make it impracticable to
market the Preferred Securities or to enforce contracts, including orders, for
the sale of the Preferred Securities, and (ii) trading generally on either the
American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market
shall not have been suspended, and minimum or maximum prices for trading shall
not have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any other
governmental authority, and a banking moratorium shall not have been declared by
either Federal or Massachusetts authorities.
(m) At the Closing Time, counsel for the Underwriters shall have been
furnished such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Preferred
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties of the Offerors, or the fulfillment
-19-
of any of the conditions, herein contained; and all proceedings taken by the
Offerors in connection with the issuance and sale of the Preferred Securities as
herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(n) In the event the Underwriters exercise their option provided in
Section 2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriters to purchase the Option Securities that it has
agreed to purchase shall be subject to the receipt by the Underwriters on the
Option Closing Date of:
(i) A certificate, dated the Option Closing Date, of the
Chairman of the Board or the President and the Chief Financial Officer
or the Controller of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(c) hereof remains
true as of the Option Closing Date;
(ii) The favorable opinion of Xxxxx Xxxx, counsel for the
Company, addressed to the Underwriters and dated the Option Closing
Date, in form satisfactory to Xxxxxxx Xxxxxxxx & Wood, counsel to the
Underwriters, relating to the Option Securities and otherwise to the
same effect as the opinion required by Section 5(b)(i) hereof;
(iii) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger,
P.A., special Delaware counsel for the Offerors, addressed to the
Underwriters and dated the Option Closing Date, in form satisfactory to
Xxxxxxx Xxxxxxxx & Wood, counsel to the Underwriters, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Section 5(b)(ii) hereof;
(iv) The favorable opinion of [ ], counsel for the Indenture
Trustee and the Delaware Trustee, addressed to the Underwriters and
dated the Option Closing Date, in form satisfactory to Xxxxxxx Xxxxxxxx
& Wood, counsel to the Underwriters, relating to the Option Securities
and otherwise to the same effect as the opinion required by Section
5(b)(iii) hereof;
(v) The favorable opinion of Xxxxxxx Xxxxxxxx & Xxxx, counsel
to the Underwriters, dated the Option Closing Date, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Section 5(b)(iv) hereof; and
(vi) A letter from Xxxxxx Xxxxxxxx LLP addressed to the
Underwriters and dated the Option Closing Date, in form and substance
satisfactory to the Underwriters and substantially the same in form and
substance as the letter(s) furnished to the Underwriters pursuant to
Section 5(e) hereof.
(vii) At the Closing Time, counsel for the Underwriters shall
have been furnished such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Preferred Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties of
the Offerors, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Offerors in connection with
the issuance and sale of the Preferred Securities as herein
contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
-20-
(o) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Offerors at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof and except that Sections
7 and 8 hereof shall survive any such termination and remain in full force and
effect.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by the Underwriters on notice to the Offerors at any time at or prior
to the Closing Time, and such termination shall be without liability of any
party to any other party, except as provided in Section 4 of this Agreement.
Notwithstanding any such termination, the provisions of Sections 4, 6, 7, 10 and
12 of this Agreement shall remain in effect.
Section 6. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless the Underwriters, each officer, director, employee, agent and legal
counsel of the Underwriters, and each person, if any, who controls the
Underwriters within the meaning of Section 15 of the 1933 Act or Section 20(a)
of the 1934 Act, against any loss, liability, claim, damage and expense
whatsoever (which shall include, but not be limited to, amounts incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim or investigation whatsoever and any and all amounts
paid in settlement of any claim or litigation, provided such settlement is
entered into with the consent of the Offerors as provided herein), as and when
incurred, arising out of, based upon or in connection with (i) any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, contained in (A) any
preliminary prospectus, the Registration Statement or the Prospectus (as from
time to time amended and supplemented), or any amendment or supplement thereto
or in any document incorporated by reference therein or required to be delivered
with any preliminary prospectus or the Prospectus or (B) in any application or
other document or communication (collectively called an "application") executed
by or on behalf of the Company or the Trust or based upon written information
furnished by or on behalf of the Company or the Trust filed in any jurisdiction
in order to qualify the Preferred Securities under the "blue sky" or securities
laws thereof or filed with the Commission, the NASD or any securities exchange,
unless such statement or omission or alleged statement or omission was made in
reliance upon and in conformity with written information concerning the
Underwriters, this Agreement or the compensation of the Underwriters furnished
to the Offerors by or on behalf of the Underwriters expressly for inclusion in
any preliminary prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or in any application, as the case may be, or
(ii) any breach of any representation, warranty, covenant or agreement of the
Offerors contained in this Agreement. For purposes of this section, the term
"expense" shall include, but not be limited to, counsel fees and costs, court
costs, out-of-pocket costs and compensation for the time spent by any of the
Underwriters' directors, officers, employees and counsel according to his or her
normal hourly billing rates. The indemnification provisions shall also extend to
all directors, officers, employees, agents, legal counsel and controlling
persons of each affiliate of the Underwriters.
-21-
(b) The Underwriters agree to indemnify and hold harmless each of the
Offerors, each of their directors or trustees, each officer who signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) above, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any application in
reliance upon and in conformity with written information about the Underwriters,
this Agreement or the compensation of the Underwriters, furnished to either of
the Offerors by the Underwriters expressly for inclusion in such preliminary
prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or in any application.
(c) An indemnified party shall give prompt notice to each indemnifying
party if any action, suit, proceeding or investigation is commenced in respect
of which indemnity may be sought hereunder, but failure to notify an
indemnifying party shall not relieve the indemnifying party from its obligations
to indemnify hereunder, except to the extent that the indemnifying party has
been prejudiced in any material respect by such failure. If it so elects within
a reasonable time after receipt of such notice, an indemnifying party may assume
the defense of such action, including the employment of counsel satisfactory to
the indemnified parties and the payment of all expenses of the indemnified party
in connection with such action. Such indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have promptly employed counsel satisfactory
to such indemnified party or parties or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other indemnified parties that are different from or
additional to those available to one or more of the indemnifying parties, in any
of which events such fees and expenses shall be borne by the indemnifying party
and the indemnifying party shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties. The Offerors shall be
jointly and severally liable for any settlement of any claim against the
Underwriters (or any of its directors, officers, employees, agents, legal
counsel or controlling persons) made with the Offerors' written consent, which
consent shall not be unreasonably withheld. The Offerors shall not, without the
written consent of the Underwriters, settle or compromise any claim against the
Underwriters (or any of its directors, officers, employees, agents, legal
counsel or controlling persons) based upon circumstances giving rise to an
indemnification claim against the Offerors hereunder unless such settlement or
compromise provides that the Underwriters and the other indemnified parties
shall be unconditionally and irrevocably released from all liability in respect
to such claim.
(d) In order to provide for just and equitable contribution, if a claim
for indemnification pursuant to these indemnification provisions is made but it
is found in a final judgment by a court that such indemnification may not be
enforced in such case, even though the express provisions hereof provide for
indemnification in such case, then the Offerors, on the one hand, and the
Underwriters, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense (i) in such
-22-
proportion as is appropriate to reflect the relative benefits received by the
Offerors, on the one hand, and the Underwriters, on the other hand, from the
underwriting, or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Offerors, on the one hand, and the Underwriters, on the other hand, in
connection with the statements, acts or omissions which resulted in such loss,
liability, claim, damage and expense, and any other relevant equitable
considerations. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not also found
liable for such fraudulent misrepresentation or omission. Notwithstanding the
foregoing, the Underwriters shall not be obligated to contribute any amount
hereunder that exceeds the amount of the underwriting commission paid to the
Underwriters with respect to the Preferred Securities purchased by the
Underwriters.
(e) The indemnity and contribution agreements contained herein are in
addition to any liability which the Offerors may otherwise have to the
Underwriters.
(f) Neither termination nor completion of the engagement of the
Underwriters nor any investigation made by or on behalf of the Underwriters
shall affect the indemnification obligations of the Offerors or the Underwriters
hereunder, which shall remain and continue to be operative and in full force and
effect.
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Offerors or their officers or trustees set forth in or made
pursuant to this Agreement will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Offerors or the
Underwriters or any controlling person and will survive delivery of and payment
for the Preferred Securities.
Section 8. OFFERING BY THE UNDERWRITERS. The Offerors are advised by
the Underwriters that the Underwriters propose to make a public offering of the
Preferred Securities, on the terms and conditions set forth in the Registration
Statement from time to time as and when the Underwriters deem advisable after
the Registration Statement becomes effective. Because the NASD is expected to
view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's Conduct Rules.
Section 9. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis, the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' judgment, impracticable to market the
Preferred Securities or enforce contracts for the sale of the Preferred
Securities, or
-23-
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the NASD, or if trading generally on the
New York Stock Exchange or in the over-the-counter market has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by such exchange or by order of the
Commission, the NASD or any other governmental authority with appropriate
jurisdiction over such matters, or (iv) if a banking moratorium has been
declared by any federal, Pennsylvania or New York authority, or (v) if there
shall have been such material and substantial change in the market for
securities in general or in political, financial or economic conditions as in
the Underwriters' judgment makes it inadvisable to proceed with the offering,
sale and delivery of the Preferred Securities on the terms contemplated by the
Prospectus, (vi) if the Underwriters reasonably determine (which determination
shall be in good faith) that there has not been satisfactory disclosure of all
relevant financial information relating to the Offerors in the Offerors'
disclosure documents and that the sale of the Preferred Securities is
inadvisable given such disclosures or (vii) if the Price Determination Agreement
has not been executed by all the parties hereto prior to 5:30 p.m. on the first
business day following the date of this Agreement.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4 hereof. Notwithstanding any such
termination, the provisions of Sections 4, 6, 7, 10 and 12 hereof shall remain
in effect.
Section 10. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices shall be addressed as follows:
If to the Underwriters:
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxx X. Xxxxxxx, Chairman and Chief Executive Officer
[ ]
[ ]
[ ]
Attention: [ ]
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
-24-
If to the Company or the Trust:
Seacoast Financial Services Corporation
Xxx Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, President and Chief
Executive Officer
with a copy to:
Xxxxx Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Section 11. PARTIES. This Agreement is made solely for the benefit of
the Underwriters, and the officers, directors, employees, agents and legal
counsel of the Underwriters specified in Section 6 hereof, the Trust and the
Company and, to the extent expressed, any person controlling the Trust, the
Company or the Underwriters, and the directors of the Company, or trustees of
the Trust, their respective officers who have signed the Registration Statement,
and their respective executors, administrators, 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, as
such purchaser, from the Underwriters of the Preferred Securities.
Section 12. ARBITRATION. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons
bound hereby arising out of, or by virtue of, or in connection with, or
otherwise relating to this Agreement shall be submitted to and settled by
arbitration conducted in Pennsylvania before one or three arbitrators, each
of whom shall be knowledgeable in the field of securities law and investment
banking. Such arbitration shall be conducted in accordance with the rules
then obtaining of the American Arbitration Association. The parties hereto
agree to share equally the responsibility for all fees of the arbitrators,
abide by any decision rendered as final and binding and waive the right to
appeal the decision or otherwise submit the dispute to a court of law for a
jury or non-jury trial. The parties hereto specifically agree that neither
party may appeal or subject the award or decision of any such arbitrator to
appeal or review in any court of law or in equity or in any other tribunal,
arbitration system or otherwise. Judgment upon any award granted by such
arbitrator may be enforced in any court having jurisdiction thereof.
Section 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
the laws of the State of New Jersey. Specified times of the day refer to New
York City time.
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
-25-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Trust and the
Underwriters in accordance with its terms.
Very truly yours,
SEACOAST CAPITAL TRUST I
By: Seacoast Financial Services Corporation,
as Depositor
By:
----------------------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
SEACOAST FINANCIAL SERVICES CORPORATION
By:
----------------------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., LLC
By:
------------------------------------
Xxx X. Xxxxxxx
Chairman and Chief Executive Officer
[ ]
By:
------------------------------------
-26-
EXHIBIT A
SEACOAST CAPITAL TRUST I
(a Delaware business trust)
1,800,000 Preferred Securities
[ ]% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
PRICE DETERMINATION AGREEMENT
[ ], 2002
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof
(the "Underwriting Agreement"), among Seacoast Capital Trust I, a Delaware
business trust (the "Trust"), Seacoast Financial Services Corporation, a
Massachusetts corporation (the "Company" and, together with the Trust, the
"Offerors"), and Xxxx, Xxxx & Co., LLC and [ ] (together, the "Underwriters").
The Underwriting Agreement provides for the purchase by the Underwriters from
the Trust, subject to the terms and conditions set forth therein, of 1,800,000
of the [ ]% Cumulative Trust Preferred Securities of the Trust (the "Preferred
Securities"), subject to the Underwriters' option to purchase up to an
additional 270,000 Preferred Securities (to cover over-allotments, if any). This
Agreement is the Price Determination Agreement referred to in the Underwriting
Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors agree
with the Underwriters as follows:
1. The public offering price per Preferred Security shall be $25.
2. The purchase price for the Preferred Securities to be paid by the
Underwriters shall be $25 per Preferred Security.
3. The commission per Preferred Security to be paid by the Company to
the Underwriters for its commitment hereunder shall be $0.90625 per Preferred
Security.
4. The distribution rate on the Preferred Securities shall be [ ]% per
annum.
A-1
The Offerors represent and warrant to the Underwriters that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of New
Jersey.
A-2
If the foregoing is in accordance with the understanding of the
Underwriters of the agreement between the Underwriters and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
SEACOAST CAPITAL TRUST I
By: Seacoast Financial Services Corporation,
as Depositor
By:
----------------------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
SEACOAST FINANCIAL SERVICES CORPORATION
By:
----------------------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., LLC
By:
------------------------------------
Xxx X. Xxxxxxx
Chairman and Chief Executive Officer
[ ]
By:
------------------------------------
A-3
EXHIBIT B
The opinion of counsel to the Company to be delivered pursuant to
Section 5(b)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts, with
requisite corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and is
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended. Compass Bank for Savings is a savings bank organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts, with requisite corporate power and authority to own, lease and
operate its properties and conduct its business as described in the Registration
Statement. Nantucket Bank is a savings bank organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts, with
requisite corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement. Each of the
Company's other direct and indirect subsidiaries is organized, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation, with requisite corporate power and authority to own, lease and
operate its respective properties and conduct its business as described in the
Registration Statement, except where the failure to be in good standing would
not have a material adverse effect on the business, financial condition or
results operations of the Company and its subsidiaries, considered as one
enterprise.
2. The Company and each of its direct and indirect subsidiaries are
qualified to transact business as foreign corporations under the corporation
laws of each jurisdiction in which the Company or such subsidiary, as the case
may be, owns or leases property of a nature, has an office or transacts business
of a type that would make such qualification necessary, except where the failure
so to qualify would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries, considered as one enterprise.
3. The deposit accounts of Compass Bank for Savings and Nantucket Bank
are insured by the Savings Association Insurance Fund or Bank Insurance Fund of
the FDIC up to the maximum amount allowable by law, and, to such counsel's
knowledge, no proceedings for the termination or revocation of such insurance
are pending or threatened.
4. All of the issued and outstanding shares of capital stock of each of
the Company's direct or indirect subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable and, to such
counsel's knowledge, are owned by the Company or one of its wholly-owned
subsidiaries free and clear of any security interests, liens, pledges, claims or
other encumbrances, except where the failure to own such shares free and clear
of any security interests, liens, pledges, claims or other encumbrances would
not have a material adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries, considered as one
enterprise.
5. The authorized and outstanding capital stock of the Company as of
the date indicated is as set forth in the Prospectus under the heading
"Capitalization."
B-1
6. The Company has full corporate power and authority to execute,
deliver and perform the Underwriting Agreement, the Trust Agreement, the
Guarantee Agreement, the Indenture and the Expense Agreement (the "Operative
Documents") and to issue and perform its obligations under the Debentures as
contemplated by the Prospectus; the Underwriting Agreement has been duly
authorized, executed and delivered by the Company, and, assuming the due
authorization, execution and delivery thereof by the Trust and the Underwriters,
the Underwriting Agreement constitutes a legal, valid, and binding obligation of
each of the Company and the Trust, enforceable against each of the Company and
the Trust in accordance with its terms, except as enforceability of the
Underwriting Agreement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and by
equitable principles limiting the right to specific performance or other
equitable relief and except as the obligations of the Company under the
indemnification and contribution provisions of Section 6 of the Underwriting
Agreement may be limited by laws or unenforceable as against public policy, as
to which no opinion is expressed.
7. The Trust Agreement has been duly authorized, executed and delivered
by the Company and the Administrative Trustees and is a valid and binding
obligation of the Company and the Administrative Trustees enforceable against
the Company and the Administrative Trustees in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally and by general equity principles (whether considered in a
proceeding in equity or at law).
8. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally and by general equity principles (whether considered in a
proceeding in equity or at law).
9. The Expense Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally and by general equity principles (whether considered in a
proceeding in equity or at law).
10. The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act and is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by general equity
principles (whether considered in a proceeding in equity or at law).
11. The Debentures have been duly authorized, executed and delivered by
the Company and, when duly authenticated in accordance with the Indenture and
delivered and paid for as contemplated by the Prospectus, will be valid and
binding obligations of the Company,
B-2
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by general equity
principles (whether considered in a proceeding in equity or at law).
12. Neither the Company nor the Trust is, and following the issuance of
the Preferred Securities and the consummation of the transactions contemplated
by the Operative Documents and the application of the proceeds therefrom as
described in the Prospectus, neither the Company nor the Trust will be, an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act.
13. The statements set forth in the Registration Statement under the
captions "Description of the Preferred Securities," "Description of the
Debentures," "Description of the Guarantee" and "Relationship Among the
Preferred Securities, the Debentures and the Guarantee," insofar as they purport
to describe the provisions of the laws referred to therein, fairly summarize the
legal matters described therein.
14. The statements of law or legal conclusions and opinions set forth
in the Registration Statement under the caption "Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
15. The Registration Statement was declared effective under the 1933
Act as of the date and time specified in such opinion, any required filing of
the Prospectus or any supplement thereto pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b) and, to such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933 Act and no
proceedings therefor have been initiated or threatened by the Commission.
16. The Registration Statement (including the information required by
Rule 430A, if applicable) and the Prospectus and any amendment or supplement
thereto (except for the financial statements and other financial and statistical
data included therein or omitted therefrom, as to which such counsel need
express no opinion), as of their respective effective or issue dates, complied
as to form in all material respects with the applicable requirements of the 1933
Act and the 1933 Act Regulations.
17. The documents incorporated by reference in the Prospectus (except
for the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel expresses no opinion, and
except to the extent that any statement therein is modified or superseded in the
Prospectus), as of the dates they were filed with the Commission, complied as to
form in all material respects with the applicable requirements of the 1934 Act
and the 1934 Act Regulations.
18. Such counsel knows of no legal or governmental proceedings pending
to which the Company or any direct or indirect subsidiary is a party or of which
any property of the Company or any direct or indirect subsidiary is the subject
that are required to be disclosed in the Registration Statement or that would
affect the consummation of the transactions contemplated
B-3
in the Underwriting Agreement or the Indenture; and such counsel knows of no
such proceedings that are threatened or contemplated by governmental authorities
or threatened by others.
19. Such counsel knows of no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described in the
Registration Statement or to be filed as exhibits thereto other than those
described therein or filed or incorporated by reference as exhibits thereto, and
such instruments as are summarized in the Registration Statement are fairly
summarized in all material respects.
20. No approval, authorization, consent, registration, qualification or
other order of any public board or body is required in connection with the
execution and delivery of the Underwriting Agreement, the Trust Agreement, the
Guarantee Agreement, the Expense Agreement and the Indenture or the issuance and
sale of the Preferred Securities or the consummation by the Company of the other
transactions contemplated by the Underwriting Agreement, the Trust Agreement,
the Guarantee Agreement, the Expense Agreement or the Indenture, except such as
have been obtained under the 1933 Act, the 1934 Act and the Trust Indenture Act
or such as may be required under the blue sky or securities laws of various
states in connection with the offering and sale of the Preferred Securities.
21. To such counsel's knowledge, each of the Company, Compass Bank for
Savings and each other direct or indirect subsidiary of the Company has all
material licenses, permits and other governmental authorizations currently
required for the conduct of its business as presently conducted.
22. The execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and the Indenture, the
issue and sale of the Preferred Securities and the Debentures, the compliance by
the Company with the provisions of the Preferred Securities, the Debentures, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Expense Agreement
and the Underwriting Agreement and the consummation of the transactions therein
contemplated will not conflict with or constitute a breach of, or default under,
(a) the articles of incorporation, charter or by-laws of the Company or any
direct or indirect subsidiary or (b) any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to such counsel to which either
the Company or any direct or indirect subsidiary is a party or by which any of
them or any of their respective properties may be bound except for such breaches
as would not have a material adverse effect on the business, financial condition
or results of operations of the Company and its subsidiaries considered as one
enterprise, nor will such action result in a violation on the part of the
Company or any direct or indirect subsidiary of any applicable law or regulation
or of any administrative, regulatory or court decree known to such counsel.
23. Counsel will supplementally provide a written statement that such
counsel has participated in the preparation of the Registration Statement and
the Prospectus and has reviewed the documents incorporated by reference in the
Prospectus, and no facts have come to the attention of such counsel to lead it
to believe (a) that the Registration Statement (including the information
required by Rule 430A, if applicable) or any amendment thereto (except for the
financial statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need not comment), at the time the
Registration Statement or any such
B-4
amendment became effective, contained an 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, in light of the circumstances under which they were
made, not misleading or (b) that the Prospectus or any amendment or supplement
thereto (except for the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need not
comment), at the time the Prospectus was issued, or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
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 or (c)
that the documents incorporated by reference in the Prospectus (except for the
financial statements and other financial or statistical data contained therein
or omitted therefrom, as to which such counsel need not comment, and except to
the extent that any statement therein is modified or superseded in the
Prospectus), as of the dates they were filed with the Commission, contained an
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, in the light
of the circumstances under which they were made, not misleading.
B-5
EXHIBIT C
The opinion of special Delaware counsel to the Company and the Trust to
be delivered pursuant to Section 5(b)(ii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act and all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Delaware Act and the Trust Agreement, the Trust has the
requisite power and authority to (i) own its properties and conduct its
business, all as described in the Prospectus, (ii) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a party,
(iii) purchase and hold the Debentures.
3. The Trust Agreement constitutes a valid and binding obligation of
the Company and the Trustees and is enforceable against the Company and the
Trustees in accordance with its terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, receivership, liquidation, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii) general
principles of equity (regardless of whether considered and applied in a
proceeding in equity or at law) and (iii) considerations of public policy or the
effect of applicable law relating to fiduciary duties.
4. Under the Delaware Act and the Trust Agreement, the Trust has the
requisite power and authority to execute and deliver, and to perform its
obligations under, the Underwriting Agreement and to issue and perform its
obligations under the Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
business trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized for issuance by
the Trust and, when issued, executed, authenticated and delivered in accordance
with the terms of the Trust Agreement against payment therefor as set forth in
the Underwriting Agreement, will be duly and validly issued and (subject to the
terms of the Trust Agreement) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust entitled to the benefits of the Trust
Agreement (subject to the limitations set forth in paragraph 3 above). The
holders of the Preferred Securities, as beneficial owners of the Trust, will be
entitled to the same limitations of personal liability as are extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such counsel need
express no opinion with respect to the liability of any holder of the Preferred
Securities who is, was or may become a named Trustee of the Trust.
7. The Common Securities have been duly authorized for issuance by the
Trust and, when issued, executed and delivered to the Company against payment
therefor in accordance
C-1
with the terms of the Trust Agreement, will be duly and validly issued and
(subject to the terms of the Trust Agreement) fully paid and nonassessable
undivided beneficial interests in the assets of the Trust entitled to the
benefits of the Trust Agreement (subject to the limitations set forth in
paragraph 3 above).
8. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and the Common Securities is not subject to any preemptive
or similar rights.
9. The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the Debentures, the execution,
delivery and performance by the Trust of the Underwriting Agreement, the
consummation by the Trust of the transactions contemplated by the Underwriting
Agreement and the compliance by the Trust with its obligations thereunder will
not violate (i) any of the provisions of the Certificate of Trust or the Trust
Agreement or (ii) any applicable Delaware law or administrative regulation.
10. No authorization, approval, consent or order of any Delaware court
or Delaware governmental authority or Delaware agency is required to be obtained
by the Trust solely in connection with of the issuance and sale of the Preferred
Securities and the Common Securities or the performance by the Trust of its
obligations under the Operative Documents to which it is a party.
11. Assuming that the Trust derives no income from or in connection
with sources within the State of Delaware and has no assets, activities (other
than maintaining the Delaware Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the State of
Delaware, the holders of the Preferred Securities (other than those holders of
Preferred Securities who reside or are domiciled in the State of Delaware) will
have no liability for income taxes imposed by the State of Delaware solely as a
result of their participation in the Trust, and the Trust will not be liable for
any income tax imposed by the State of Delaware.
C-2
EXHIBIT D
The opinion of counsel to the Trust Company to be delivered pursuant to
Section 5(b)(iii) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Trust Company is a New York banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the Commonwealth of Massachusetts with all necessary power and authority to
execute and deliver, and to carry out and perform its obligations under, the
Indenture, the Trust Agreement and the Guarantee Agreement.
2. The execution, delivery and performance by the Property Trustee of
the Trust Agreement, the execution, delivery and performance by the Guarantee
Trustee of the Guarantee Agreement and the execution, delivery and performance
by the Indenture Trustee of the Indenture have been duly authorized by all
necessary corporate action on the part of the Property Trustee, the Guarantee
Trustee and the Indenture Trustee, respectively. Each of the Trust Agreement,
the Guarantee Agreement and the Indenture have been duly executed and delivered
by the Property Trustee, the Guarantee Trustee and the Indenture Trustee,
respectively, and constitute the legal, valid and binding obligations of the
Property Trustee, the Guarantee Trustee and the Indenture Trustee, respectively,
enforceable against the Property Trustee, the Guarantee Trustee and the
Indenture Trustee, respectively, in accordance with their respective terms,
except as enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, receivership or similar
laws relating to the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3. The execution, delivery and performance of the Trust Agreement, the
Guarantee Agreement and the Indenture by the Property Trustee, the Guarantee
Trustee and the Indenture Trustee, respectively, do not conflict with or
constitute a breach of the charter or by-laws of the Property Trustee, the
Guarantee Trustee and the Indenture Trustee, respectively.
4. No consent, approval or authorization of, or registration with or
notice to any federal or state banking authority is required for the execution,
delivery or performance by the Property Trustee, the Guarantee Trustee or the
Indenture Trustee of the Trust Agreement, the Guarantee Agreement and the
Indenture, respectively.
5. The Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
D-1
EXHIBIT E
The opinion of counsel to the Delaware Trustee to be delivered pursuant
to Section 5(b)(iv) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Delaware Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the State of Delaware with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under, the Trust
Agreement.
2. The execution, delivery and performance by the Delaware Trustee of
the Trust Agreement have been duly authorized by all necessary corporate action
on the part of the Delaware Trustee. The Trust Agreement has been duly executed
and delivered by the Delaware Trustee and constitutes the legal, valid and
binding obligation of the Delaware Trustee, enforceable against the Delaware
Trustee in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, receivership or similar laws relating to the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
3. The execution, delivery and performance of the Trust Agreement by
the Delaware Trustee do not conflict with or constitute a breach of the charter
or by-laws of the Delaware Trustee.
4. No consent, approval or authorization of, or registration with or
notice to any federal or state banking authority is required for the execution,
delivery or performance by the Delaware Trustee of the Trust Agreement.
E-1
