$50,000,000
HUBCO Capital Trust II
7.65% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
guaranteed by
HUBCO, Inc.
PURCHASE AGREEMENT
June 16, 1998
XXXXX, XXXXXXXX & XXXXX, INC.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
HUBCO Capital Trust II (the "Trust"), a statutory business trust
created under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801 et
seq.)) and HUBCO, Inc. (the "Company," and together with the Trust, the
"Offerors") confirm their agreement (the "Agreement") with Xxxxx, Xxxxxxxx &
Xxxxx, Inc. the "Initial Purchaser"), which term shall also include any initial
purchaser substituted as hereinafter provided in Section 10 hereof, with respect
to the issue and sale by the Trust and the purchase by the Initial Purchaser of
the number set forth in Schedule A of 7.65% Capital Securities (liquidation
amount of $1,000 per security) of the Trust (the "Capital Securities"). The
Capital Securities will be guaranteed by the Company, to the extent described in
the Offering Memorandum (as defined below), with respect to distributions and
payments upon liquidation, redemption and otherwise pursuant to the Capital
Securities Guarantee Agreement (the "Capital Securities Guarantee"), to be dated
as of June 19, 1998, between the Company and the Bank of New York, as Trustee
(the "Guarantee Trustee"). The Capital Securities issued in book-entry form will
be issued to Cede & Co. as nominee of The Depository Trust Company ("DTC")
pursuant to an additional or supplemented letter agreement, to be dated on or
prior to the Closing Time (as defined in Section 2(b)) (the "DTC Agreement"),
among the Trust, the Guarantee Trustee and DTC.
The Company is a registered bank holding company under the provisions
of the Bank Holding Company Act of 1956, as amended, whose principal operating
subsidiaries are Xxxxxx United Bank ("HUB"), a New Jersey-chartered commercial
bank, Lafayette American Bank and Trust Company, a Connecticut-chartered bank
("Lafayette,"), and Bank of the Xxxxxx, a federally-chartered savings bank
("BTH" and together with HUB and Lafayette, the "Banks" and each a "Bank"). The
entire proceeds from the sale of the Capital Securities will be combined with
the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), as guaranteed by the Company, to the
extent set forth in the Offering Memorandum, with respect to distributions and
payments upon liquidation, redemption and otherwise pursuant to the Common
Securities Guarantee Agreement (the "Common Securities Guarantee" and, together
with the Capital Securities Guarantee, the "Guarantees"), to be dated as of June
19, 1998, made by the Company, and will be used by the Trust to purchase
$51,547,000 in aggregate principal amount of the Series A 7.65% Junior
Subordinated Deferrable Interest Debentures due June 30, 2028 (the "Subordinated
Debentures") issued by the Company. The Capital Securities and the Common
Securities will be issued pursuant to the Amended and Restated Declaration of
Trust, to be dated as of June 19, 1998 (the "Declaration"), among the Company,
as sponsor, Xxxxxxx X. Xxxxxxx and X. Xxxx Van Borkulo-Xxxxx, as administrative
trustees (the "Administrative Trustees"), The Bank of New York, as property
trustee (the "Property Trustee"), and The Bank of New York (Delaware), as
Delaware trustee (the "Delaware Trustee," and, together with the Property
Trustee and the Administrative Trustees, the "Trustees"). The Subordinated
Debentures will be issued pursuant to an indenture, to be dated as of June 19,
1998 (the "Indenture"), between the Company and The Bank of New York, as trustee
(the "Debenture Trustee").
The Capital Securities, the Capital Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the "Initial
Securities."
The Initial Securities will be subject to the registration rights set
forth in the registration rights agreement (the "Registration Rights
Agreement"), to be executed on and dated as of the Closing Time. Pursuant to the
Registration Rights Agreement, the Offerors will agree, among other things, to
file with the Securities and Exchange Commission (the "Commission") (i) a
registration statement (the "Exchange Offer Registration Statement") under the
United States Securities Act of 1933, as amended (the "1933 Act"), relating to
another series of capital securities (liquidation amount $1,000 per security) of
the Trust (the "Exchange Capital Securities"), another capital securities
guarantee (the "Exchange Capital Securities Guarantee"), and another series of
Junior Subordinated Deferrable Interest Debentures due June 30, 2028 (the
"Exchange Subordinated Debentures" and, collectively with the Exchange Capital
Securities and the Exchange Capital Securities Guarantee, the "Exchange
Securities"), to be offered in exchange for the Initial Securities (such offer
to exchange being referred to as the "Exchange Offer") and/or (ii) a shelf
registration statement (the "Shelf Registration Statement") pursuant to Rule 415
of the rules and regulations promulgated under the 1933 Act (the "1933 Act
Regulations") by the Securities and Exchange Commission (the "Commission")
relating to the resale by certain holders of the Capital Securities. The
Registration Rights Agreement shall be in a form, and shall contain terms and
provisions, customary for similar Rule 000X ("Xxxx 000X" of the 1933 Act
Regulations) transactions, and shall otherwise be in form and substance
reasonably satisfactory to the Initial Purchaser.
The Initial Securities and the Exchange Securities are jointly referred
to as the "Securities". The Indenture, the Declaration, the Guarantees, the
Registration Rights Agreement, the DTC Agreement and this Agreement are
hereinafter referred to collectively as the "Operative Documents."
The Offerors understand that the Initial Purchaser proposes to make an
offering of the Capital Securities (as guaranteed by the Capital Securities
Guarantee) on the terms and in the manner set forth herein and agree that the
Initial Purchaser may resell, subject to the conditions set forth herein, all or
a portion of the Capital Securities to purchasers ("Subsequent Purchasers") at
any time after the date of this Agreement. The Capital Securities are to be
offered and sold through the Initial Purchaser without being registered under
the 1933 Act, in reliance upon exemptions therefrom. Pursuant to the terms of
the Capital Securities, investors that acquire Capital Securities may only
resell or otherwise transfer such Capital Securities if such Capital Securities
are hereafter registered under the 1933 Act or if an exemption from the
registration requirements of the 1933 Act is available (including the exemption
afforded by Rule 144A or Regulation S ("Regulation S") of the 1933 Act
Regulations).
The Offerors have prepared and delivered to the Initial Purchaser a
copy of a preliminary offering memorandum dated June 16, 1998 (the "Preliminary
Offering Memorandum") and have prepared and will deliver to the Initial
Purchaser, as soon as practicable, a copy of a final offering memorandum, dated
June 19, 1998 (the "Final Offering Memorandum"), each for use by the Initial
Purchaser in connection with its solicitation of purchases of, or offering of,
the Capital Securities. "Offering Memorandum" means, with respect to any date or
time referred to in this Agreement, the most recent offering memorandum (whether
the Preliminary Offering Memorandum or the Final Offering Memorandum, or any
amendment or supplement to either such document), including exhibits thereto and
any documents incorporated therein by reference, which has been prepared and
delivered by the Offerors to the Initial Purchaser in connection with its
solicitation of purchases of, or offering of, the Capital Securities.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," "disclosed" or "stated"
in the Offering Memorandum (or other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act") which is
incorporated by reference in the Offering Memorandum.
SECTION 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to the
Initial Purchaser as of the date hereof and as of the Closing Time, and agree
with the Initial Purchaser as follows:
(i) The Offerors have not, directly or indirectly, solicited
any offer to buy or offered to sell, and will not, directly or
indirectly, solicit any offer to buy or offer to sell, in the United
States or to any United States citizen or resident, any security which
is or would be integrated with the sale of the Capital Securities in a
manner that would require the Capital Securities to be registered under
the 1933 Act.
(ii) The Offering Memorandum does not, and at the Closing Time
will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that this representation, warranty and
agreement shall not apply to statements in or omissions from the
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Offerors in writing by or on behalf of the
Initial Purchaser expressly for use in the Offering Memorandum.
(iii) The documents incorporated or deemed to be incorporated
by reference in the Offering Memorandum at the time they were or
hereafter are filed with the Commission complied and will comply in all
material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in
the Offering Memorandum, at the date of the Offering Memorandum and at
the Closing Time, do not and will not include 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 the light of
the circumstances under which they were made, not misleading.
(iv) The financial statements of the Company together with the
related schedules and notes, included or incorporated by reference in
the Offering Memorandum present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated and
the results of operations and changes in financial position of such
entities for the periods specified; except as otherwise stated in the
Offering Memorandum, such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved, except
as disclosed in the notes to such financial statements; and the
supporting schedules for the Company and its consolidated subsidiaries
incorporated by reference in the Offering Memorandum present fairly in
all material respects the information required to be stated therein.
The summary financial data included in the Offering Memorandum present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Offering Memorandum.
(v) The accountants who certified the financial statements and
supporting schedules of the Company and its consolidated subsidiaries
incorporated by reference in the Offering Memorandum are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(vi) Since the respective dates as of which information is
given in the Offering Memorandum, except as may otherwise be stated in,
or referred to therein: (1) there has not been any material adverse
change in the condition, financial or otherwise, of the Trust or of the
Company and its consolidated subsidiaries considered as one enterprise,
or in the earnings, assets, business affairs or business prospects of
the Trust or of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
(2) there have not been any transactions entered into by the Trust or
by the Company or any of its subsidiaries other than in the ordinary
course of business which are material to the Trust or the Company and
its consolidated subsidiaries considered as one enterprise, and (3)
except for regular quarterly dividends on the Company's outstanding
shares of common stock, there has been no dividend or distribution of
any kind declared, paid or made by the Company on its capital stock or
by the Trust on any class of its securities.
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New Jersey and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under
this Agreement; the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise; and the
Company is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended.
(viii) Each of HUB, Lafayette and BTH has been duly
incorporated and is validly existing as a bank in good standing under
the laws of New Jersey, Connecticut and the United States respectively,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering
Memorandum and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each of the Banks has been duly authorized
and validly issued, is fully paid and non-assessable and is directly
owned by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any of the Banks was issued in
violation of the preemptive or similar rights of any stockholder of
such corporation arising by operation of law, under the charter or
by-laws of any subsidiary or under any agreement to which the Company
or any such Bank is a party.
(ix) The Company and its subsidiaries have good and marketable
title to all properties (real and personal) owned by the Company and
its subsidiaries, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Offering Memorandum or (b) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or its subsidiaries; and all properties
held under lease by the Company or its subsidiaries are held under
valid, subsisting and enforceable leases, except where the failure to
hold such leases would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(x) The authorized, issued and outstanding capital stock of
the Company set forth in the Offering Memorandum under the heading
"Capitalization" is accurate as of the date indicated in such document;
and the shares of such issued and outstanding capital stock have been
duly authorized and validly issued and are fully paid and
non-assessable and such capital stock conforms in all material respects
to all statements relating thereto contained in the Offering
Memorandum.
(xi) The Trust has been duly created and is validly existing
in good standing as a statutory business trust under the Delaware Act
with the power and authority to own property and to conduct its
business as described in the Offering Memorandum and to enter into and
perform its obligations under the Operative Documents, as applicable,
and the Capital Securities; the Trust is not a party to or otherwise
bound by any material agreement other than those described in the
Offering Memorandum; the Trust is and will, under current law, be
classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation; the Trust
does not have any consolidated or unconsolidated subsidiaries; the
Trust is and will be treated as a consolidated subsidiary of the
Company pursuant to GAAP; and the Trust is not required to be
authorized to do business in any jurisdiction other than the State of
Delaware, except where the failure to be so authorized would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Offering Memorandum, will
be validly issued and will represent undivided beneficial interests in
the assets of the Trust; the issuance of the Common Securities is not
subject to 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 equitable
right.
(xiii) As of the Closing Time, the Capital Securities will
have been duly authorized by the Trust and, when issued and delivered
against payment therefor as provided herein, will be validly issued and
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust and will conform to the description thereof
contained in the Offering Memorandum and the issuance of the Capital
Securities will not be subject to preemptive or other similar rights;
and as of the Closing Time, the Exchange Capital Securities will have
been duly authorized by the Trust, and when issued in accordance with
the Declaration, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the Trust. The holders
of the Capital Securities and the Exchange Capital Securities,
respectively, as beneficial owners of the Trust, will be entitled to
the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
(xiv) The execution and delivery by the Trust and the Company
of this Agreement and the performance by the Trust and the Company of
their respective obligations hereunder, have been duly authorized by
all necessary business trust action on the part of the Trust and
corporate action on the part of the Company; and this Agreement has
been duly executed and delivered by the Trust and the Company.
(xv) The Declaration has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by
the Company and the Trustees, and assuming due authorization, execution
and delivery of the Declaration by the Property Trustee and the
Delaware Trustee, the Declaration will, at the Closing Time, be a valid
and binding obligation of the Company and the Trustees, enforceable
against the Company and the Trustees in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
receivership, conservatorship and supervisory powers of bank regulatory
agencies generally as well as to bankruptcy, insolvency, fraudulent
conveyance or transfers, readjustment of debt, equitable subordination,
reorganization, moratorium or other similar laws affecting creditors'
rights generally or by general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in equity)
and the availability of equitable remedies (collectively, the
"Enforceability Exceptions"); and at the time the Exchange Offer is
consummated, the Declaration will have been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
(xvi) Each of the Guarantees and the Exchange Capital
Securities Guarantee has been duly authorized by the Company and, at
the Closing Time, each of the Guarantees will have been duly executed
and delivered by the Company in exchange for the Capital Securities
Guarantee pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement, and will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions; at or prior to
the time the Exchange Offer is consummated, the Exchange Capital
Securities Guarantee will have been duly executed and delivered by the
Company, and will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; and at the time the Exchange Offer is
consummated, the Exchange Capital Securities Guarantee will have been
duly qualified under the 0000 Xxx.
(xvii) The Indenture has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by
the Company and will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; and at the time the Exchange Offer is
consummated, the Indenture will have been duly qualified under the 1939
Act and will conform to the description thereof contained in the
Offering Memorandum.
(xviii) The Subordinated Debentures have been duly authorized
by the Company and, at the Closing Time, will have been duly executed
by the Company and, when authenticated in the manner provided for in
the Indenture and delivered against payment therefor as described in
the Offering Memorandum, will constitute valid and binding obligations
of the Company except as enforcement may be limited by the
Enforceability Exceptions, and the Exchange Subordinated Debentures
have been duly authorized by the Company and, when duly executed by the
Company and authenticated in the manner provided in the Indenture and
issued in exchange for the Subordinated Debentures in accordance with
the Registration Rights Agreement, will constitute valid and binding
obligations of the Company, in each case, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions;
and the Subordinated Debentures will be in the form contemplated by,
and entitled to the benefits of, the Indenture and will conform to the
description thereof in the Offering Memorandum.
(xix) The Registration Rights Agreement has been duly
authorized by the Offerors and, at the Closing Time, will have been
duly executed and delivered and will constitute a valid and binding
agreement of the Offerors, enforceable against the Offerors in
accordance with its terms, except to the extent enforcement thereof may
be limited by the Enforceability Exceptions; and the Registration
Rights Agreement will conform to the description thereof contained in
the Offering Memorandum.
(xx) The Operative Documents, the Capital Securities, the
Common Securities and the Guarantees each conform in all material
respects to the descriptions thereof contained in the Offering
Memorandum.
(xxi) Each of the Administrative Trustees is an officer or
employee of the Company and has been duly authorized by the Company to
execute and deliver the Declaration.
(xxii) At the Closing Time, the Property Trustee will be the
record holder of the Subordinated Debentures and no security interest,
mortgage, pledge, lien, encumbrance, claim or equity will be noted
thereon or on the Subordinated Debenture register maintained by or on
behalf of the Company.
(xxiii) Neither the Trust nor the Company is, and following
consummation of the transactions contemplated hereby will not be, an
"investment company" or a company "controlled" by an "investment
company" which is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxiv) The Trust is not in violation of the Trust Certificate
(defined below) or the Declaration, and neither the Company nor any of
the Banks is in violation of its charter or by-laws and none of the
Trust, the Company or any of the Banks is in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, loan agreement, or any contract,
note, lease or other instrument to which it is a party or by which it
or its properties may be bound, which violation or default, singly or
in the aggregate, would have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects of the Trust or the Company and its subsidiaries
considered as one enterprise; the execution and delivery of this
Agreement and the Operative Documents by the Trust or the Company, as
the case may be, and the consummation by the Offerors of the
transactions herein and therein contemplated and the compliance with
the terms of this Agreement and the issuance and delivery of the
Securities have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Trust, the Company or any of the Banks
under, any contract, indenture, mortgage, deed of trust or other
material agreement or instrument to which the Trust, the Company or any
Bank is a party or by which it or any of their respective properties
are bound, except for such conflicts, breaches and defaults as, in the
aggregate, would not be material to the Trust, or to the Company and
its subsidiary considered as one enterprise, nor will such action
result in any violation of the charter or by-laws of the Company or any
of the Banks or the Declaration or the trust certificate of the Trust
filed with the State of Delaware on June 3 1998 (the "Trust
Certificate"), or any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Trust, the Company or any Bank or any of their respective
properties.
(xxv) No filing with, or approval, authorization or consent
of, any court or governmental authority or agency is required in
connection with the offering, issuance or sale of the Capital
Securities under this Agreement or the consummation of the transactions
contemplated by the Operative Documents, except such as have been
obtained or will have been obtained prior to the Closing Time or as may
be required under state securities laws.
(xxvi) There is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or its subsidiaries which
is not disclosed in the Offering Memorandum which might reasonably be
expected to result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiary considered as one
enterprise, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of this Agreement or the performance by the Company of its obligations
hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party
or of which any of their respective property or assets is the subject
which are not described in the Offering Memorandum, including ordinary
routine litigation incidental to the business could not reasonably be
expected to result in a material adverse change in the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiary considered as one
enterprise.
(xxvii) The Company and its subsidiaries have filed all
federal, state, local and foreign tax returns that are required to be
filed or have duly requested extensions thereof and have paid all taxes
required to be paid by any of them and any related assessments, fines
or penalties, except for any such tax, assessment, fine or penalty that
is being contested in good faith and by appropriate proceedings, and
adequate charges, accruals and reserves have been provided for in the
financial statements referred to in Section 1(a)(iv) above in respect
of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company or its subsidiaries has not been
finally determined or remains open to examination by applicable taxing
authorities.
(xxviii) The Company and its subsidiaries carry or are
entitled to the benefits of insurance in such amounts and covering such
risks as is generally maintained by companies of established repute
engaged in the same or similar business, and all such insurance is in
full force and effect.
(xxix) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general and specific authorizations; (ii) transactions are recorded as
necessary to permit preparations of financial statements in conformity
with GAAP and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorizations; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxx) The Company and its subsidiaries possess such
certificates, authorities, permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect 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; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiary considered as one
enterprise.
(xxxi) The Company and its subsidiaries own or possess or can
acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "patent and proprietary rights") presently employed by
them in connection with the business now operated by them as described
in the Offering Memorandum, except where lack thereof would not result
in a material adverse change in the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, and neither the
Company nor any of its subsidiaries 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 or of any
facts or circumstances which would render any patent and proprietary
rights invalid or inadequate to protect the interest of the Company and
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxxii) No labor dispute with the employees of the Company or
its subsidiaries exists or, to the knowledge of the Company, is
imminent.
(xxxiii) The Trust, the Company and its subsidiaries are in
compliance with, and conduct their respective businesses in conformity
with, all applicable laws and governmental regulations, the violation
of which would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs, or
business prospects of the Trust, or the Company and its subsidiaries
considered as one enterprise.
(xxxiv) Other than such agreements, contracts and other
documents as are described in the Offering Memorandum or otherwise
filed as Exhibits to the Company's annual report on Form 10-K or
quarterly reports on Form 10-Q or current reports on Form 8-K
incorporated by reference in the Offering Memorandum, there are no
agreements, contracts or documents of a character described in Item 601
of Regulation S-K under the 1933 Act to which the Company or any of its
subsidiaries is a party.
(xxxv) The Company has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Securities.
(xxxvi) The Capital Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same
class as securities listed on a national securities exchange registered
under Section 6 of the 1934 Act, or quoted in a U.S. automated
interdealer quotation system.
(xxxvii) None of the Trust, the Company, or any of their
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
("Affiliates"), or any person acting on its or any of their behalf
(other than the Initial Purchaser, as to whom the Offerors make no
representation) has engaged or will engage, in connection with the
offering of the Capital Securities, in any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the 1933
Act.
(xxxiii) Subject to compliance by the Initial Purchaser with
the procedures set forth in Section 6 hereof, prior to the Exchange
Offer, it is not necessary in connection with the offer, sale and
delivery of the Capital Securities to the Initial Purchaser and to each
Subsequent Purchaser in the manner contemplated by this Agreement and
the Offering Memorandum to register the Capital Securities under the
1933 Act or to qualify any indenture or any guarantee under the 1939
Act.
(xxxix) With respect to those Capital Securities, if any, sold
in reliance on Regulation S, (A) none of the Trust, the Company, its
Affiliates or any person acting on its or their behalf (other than the
Initial Purchaser, as to whom the Offerors make no representation) has
engaged or will engage in any directed selling efforts within the
meaning of Regulation S and (B) each of the Trust, the Company and its
Affiliates and any person acting on its or their behalf (other than the
Initial Purchaser, as to whom the Offerors make no representation) has
complied and will comply with the offering restrictions requirement of
Regulation S.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any of the Banks and delivered to you or to
counsel for the Initial Purchaser shall be deemed a representation and warranty
by the Trust or the Company, as the case may be, to the Initial Purchaser as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchaser; 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 Initial Purchaser and the Initial Purchaser agrees to purchase from
the Trust, at a price of $1,000 per Capital Security, the number of Capital
Securities set forth in Schedule A opposite the name of the Initial Purchaser,
plus any additional Capital Securities which the Initial Purchaser may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Deliveries of certificates for the Capital Securities shall be made
at the office of the Initial Purchaser in New York (or at the offices of Pitney,
Xxxxxx, Xxxx & Xxxxx) specified below in the case of Capital Securities
registered in the name of Cede & Co.), and payment of the purchase price for the
Capital Securities shall be made by the Initial Purchaser to the Trust by wire
transfer of immediately available funds contemporaneous with closing at the
offices of Pitney, Xxxxxx, Xxxx & Xxxxx, 000 Xxxxxx Xxxxx, Xxxxxxx Xxxx, Xxx
Xxxxxx, 00000 at 10:00 A.M. on June 19, 1998, or such other time not later than
ten business days after such date as shall be agreed upon by the Initial
Purchaser and the Offerors (such time and date of payment and delivery being
herein called the "Closing Time").
Payment for the Capital Securities purchased by the Initial Purchaser
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the account of the Initial Purchaser of certificates for
the Capital Securities. Certificates for the Capital Securities shall be in such
denominations and registered in such names as the Initial Purchaser may request
in writing at least one business day before the Closing Time. The certificates
representing the Capital Securities which are not resold to institutional
"accredited investors" shall be registered in the name of Cede & Co. pursuant to
the DTC Agreement and shall be made available for examination and packaging by
the Initial Purchaser in The City of New York not later than 10:00 A.M. on the
last business day prior to the Closing Time.
(c) As compensation to the Initial Purchaser for its commitment
hereunder and in view of the fact that the proceeds of the sale of the Capital
Securities will be used to purchase Subordinated Debentures of the Company, the
Company hereby agrees to pay at the Closing Time to the Initial Purchaser in
immediately available funds, $12.50 per Capital Security to be delivered by the
Company hereunder at the Closing Time.
(d) The Initial Purchaser represents and warrants to, and agrees with,
the Company that it is a Qualified Institutional Buyer (as defined in Section
6(a)(i)) and an Institutional Accredited Investor (as defined in Section
6(a)(i)).
SECTION 3. Covenants of the Offerors. The Offerors covenant with the
Initial Purchaser as follows:
(a) The Offerors, as promptly as possible, will furnish to the Initial
Purchaser, without charge, such number of copies of the Offering Memorandum and
any amendments and supplements thereto and documents incorporated by reference
therein as the Initial Purchaser may reasonably request.
(b) The Offerors will immediately notify the Initial Purchaser, and
confirm such notice in writing, of (x) any filing made by the Offerors of
information relating to the offering of the Capital Securities with any
securities exchange or any other regulatory body in the United States or any
other jurisdiction, and (y) prior to the completion of the placement of the
Capital Securities by the Initial Purchaser as evidenced by a notice in writing
from the Initial Purchaser to the Offerors, any material changes in or affecting
the earnings, business affairs or business prospects of the Trust, or the
Company and its subsidiary considered as one enterprise, which (i) make any
statement in the Offering Memorandum false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or if during such time any
event shall occur as a result of which it is necessary, in the reasonable
opinion of the Company, its counsel or counsel for the Initial Purchaser, to
amend or supplement the Offering Memorandum in order that the Offering
Memorandum not include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading
in the light of the circumstances then existing, the Company will forthwith
amend or supplement the Offering Memorandum by preparing and furnishing to the
Initial Purchaser an amendment or amendments of, or a supplement or supplements
to, the Offering Memorandum (in form and substance satisfactory in the
reasonable opinion of counsel for the Initial Purchaser) so that, as so amended
or supplemented, the Offering Memorandum will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered to a Subsequent Purchaser, not misleading.
(c) The Offerors will advise the Initial Purchaser promptly of any
proposal to amend or supplement the Offering Memorandum and will not effect such
amendment or supplement without the consent of the Initial Purchaser, which
consent shall not be unreasonably withheld. Neither the consent of the Initial
Purchaser, nor the Initial Purchaser's delivery of any such amendment or
supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(d) The Offerors will cooperate with the Initial Purchaser and use
their reasonable best efforts to permit the Capital Securities to be eligible
for clearance and settlement through the facilities of DTC.
(e) The Trust will use the proceeds received by it from the sale of the
Capital Securities in the manner specified in the Offering Memorandum under "Use
of Proceeds", and the Company will use the net proceeds received by it from the
sale of the Subordinated Debentures substantially in the manner specified or
contemplated in the Offering Memorandum under "Use of Proceeds".
(f) Prior to the thirtieth day after the date of the Closing Time,
neither the Trust nor the Company will, without the prior written consent of the
Initial Purchaser, directly or indirectly, issue, sell, offer or agree to sell,
grant any option for the sale of, or otherwise dispose of, Capital Securities,
any security convertible into exchangeable or exercisable for Capital Securities
or the Subordinated Debentures or any debt securities substantially similar
(including provisions with respect to the deferral of interest) to the
Subordinated Debentures or any equity security substantially similar to the
Capital Securities (except for the Securities issued pursuant to this
Agreement).
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations and the obligations of the Trust under this
Agreement, including (i) the preparation, printing and any filing of the
Preliminary Offering Memorandum, the Final Offering Memorandum (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to the Initial Purchaser of this Agreement,
the Operative Documents and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Securities to the Initial Purchaser, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) rating agency fees and
(vi) the fees and expenses of any trustee appointed under any of the Operative
Documents, including the fees and disbursements of counsel for such trustees in
connection with the Operative Documents.
(b) Termination of Agreement. If this Agreement is terminated by the
Initial Purchaser in accordance with the provisions of Section 5 or Section 9
hereof, the Company shall reimburse the Initial Purchaser for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
Xxxxxx & Bird LLP, counsel for the Initial Purchaser.
SECTION 5. Conditions of the Initial Purchaser's Obligations. The
obligations of the Initial Purchaser hereunder are subject to the accuracy of
the representations and warranties of the Offerors contained in Section 1 hereof
or in certificates of any Trustee of the Trust, officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the performance
by the Offerors of their obligations hereunder, and to the following further
conditions:
(a) Opinion of Outside Counsel for Offerors. At the Closing Time, the
Initial Purchaser shall have received the favorable opinion, dated as of the
Closing Time, of Pitney, Xxxxxx, Xxxx & Xxxxx, counsel for the Company, to the
effect set forth in Exhibit A hereto.
(b) Opinion of Special Delaware Counsel for Offerors. At the Closing
Time, the Initial Purchaser shall have received the favorable opinion, dated as
of the Closing Time, of Morris, Nichols, Arsht & Xxxxxxx, special Delaware
counsel to the Offerors to the effect set forth in Exhibit B hereto.
(c) Opinions of Counsel for The Bank of New York. At the Closing Time,
the Initial Purchaser shall have received the favorable opinions, dated as of
the Closing Time, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New
York, as Property Trustee under the Declaration, and Guarantee Trustee under the
Capital Securities Guarantee Agreement, to the effect set forth as Exhibit C
hereto.
(d) Opinion of Special Tax Counsel for the Offerors. At the Closing
Time, the Initial Purchaser shall have received an opinion, dated as of the
Closing Time, of Pitney, Xxxxxx, Xxxx & Xxxxx, special tax counsel to the
Offerors, that (i) the Subordinated Debentures will be classified for United
States federal income tax purposes as indebtedness of the Company, (ii) the
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation and (iii)
although the discussion set forth in the Offering Memorandum under the heading
"Certain Federal Income Tax Consequences" does not purport to discuss all
possible United States federal income tax consequences of the purchase,
ownership and disposition of the Capital Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Capital Securities under current law. Such opinion may be
conditioned on, among other things, the initial and continuing accuracy of the
facts, financial and other information, covenants and representations set forth
in certificates of officers of the Company and other documents deemed necessary
for such opinion.
(e) Opinion of Counsel for Initial Purchaser. At the Closing Time, the
Initial Purchaser shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxx & Bird LLP, counsel for the Initial Purchaser, with
respect to the incorporation and legal existence of the Company, the Series A
Capital Securities, the Indenture, the Series A Capital Securities Guarantee
Agreement, this Agreement, the Registration Rights Agreement, the Offering
Memorandum and other related matters as the Initial Purchaser may require. 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 Trustees
of the Trust, officers of the Company and its subsidiaries and certificates of
public officials.
(f) Certificates. At the Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Offering Memorandum, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust, or the Company and its subsidiary considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Initial Purchasers shall have received a certificate of any Chairman, any Vice
Chairman, the Chief Executive Officer, the President or any Executive Vice
President or Senior Vice President of the Company and of the chief financial
officer or the chief accounting officer of the Company and a certificate of an
Administrative Trustee of the Trust, dated as of the Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof were true and correct when
made and are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, and (iii) the Offerors have complied with
all agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Time.
(g) Accountant's Comfort Letter. At the time of execution of this
Agreement, the Initial Purchaser shall have received from Xxxxxx Xxxxxxxx & Co.
a letter dated such date, in form and substance satisfactory to the Initial
Purchaser, containing statements and information of the type ordinarily included
in accountants' "comfort letters" to initial purchasers with respect to the
financial statements and certain financial information contained in the Offering
Memorandum.
(h) Bring-down Comfort Letter. At the Closing Time, the Initial
Purchaser shall have received from Xxxxxx Xxxxxxxx & Co. a letter, dated as of
the Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (g) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(i) Maintenance of Rating. At the Closing Time, the Series A Capital
Securities shall be rated at least "BBB-" by Fitch Investors Service ("Fitch")
and the Trust shall have delivered to the Initial Purchaser a letter dated the
Closing Time, from such rating agency, or other evidence satisfactory to the
Initial Purchaser, confirming that the Series A Capital Securities have such
rating; and between the date of this Agreement and the Closing Time, there shall
not have occurred a downgrading in the rating assigned to the Series A Capital
Securities or any of the Company's other debt securities by Fitch, and Fitch
shall not have publicly announced that it has under surveillance or review, with
possible negative implications, or that it otherwise has a negative outlook with
respect to, its rating of any of the Series A Capital Securities or any of the
Company's other debt securities.
(j) Additional Documents. At the Closing Time, counsel for the Initial
Purchaser shall have been furnished with the Registration Rights Agreement,
executed by the Company and the Trust, and such other documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Capital 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 Capital Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Initial Purchaser and counsel for the Initial
Purchaser.
(k) Termination of Agreement. 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 Initial Purchaser by written 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 and except that Sections 7, 8 and 9 and this Section 5(k) shall
survive any such termination and remain in full force and effect.
SECTION 6. Subsequent Offers and Sales of the Capital Securities.
(a) Offer and Sale Procedures. The Initial Purchaser and the Offerors
hereby establish and agree to observe the following procedures in connection
with the offer and sale of the Capital Securities:
(i) Offers and Sales only to Institutional Accredited
Investors, Qualified Institutional Buyers and Non-U.S. Persons. Offers
and sales of the Capital Securities will be made only by the Initial
Purchaser or its respective affiliates thereof qualified to do so in
the jurisdictions in which such offers or sales are made. Each such
offer or sale shall only be made (A) to persons whom the offeror or
seller reasonably believes to be qualified institutional buyers (as
defined in Rule 144A under the Securities Act) ("Qualified
Institutional Buyers"), or (B) to a limited number of other
institutional accredited investors (as such term is defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D) that the offeror or seller
reasonably believes to be and, with respect to sales and deliveries,
that are accredited investors ("Institutional Accredited Investors"),
or (C) non-U.S. persons outside the United States to whom the offeror
or seller reasonably believes offers and sales of the Capital
Securities may be made in reliance upon Regulation S under the 1933
Act.
(ii) No General Solicitation. No general solicitation or
general advertising (within the meaning of Rule 502(c) under the 0000
Xxx) will be used in the United States in connection with the offering
of the Capital Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a
non-bank Subsequent Purchaser of a Capital Security acting as a
fiduciary for one or more third parties in connection with an offer and
sale to such purchaser pursuant to clause (a) above, each third party
shall, in the judgment of the applicable Initial Purchaser, be an
Institutional Accredited Investor or a Qualified Institutional Buyer or
a non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. The Initial Purchaser
will take reasonable steps to inform, and cause each of its U.S.
affiliates to take reasonable steps to inform, persons acquiring
Capital Securities from the Initial Purchaser or affiliate, as the case
may be, in the United States that the Capital Securities (A) have not
been and will not be registered under the 1933 Act, (B) are being sold
to them without registration under the 1933 Act in reliance on Rule
144A or in accordance with another exemption from registration under
the 1933 Act, as the case may be, and (C) may not be offered, sold or
otherwise transferred except (1) to the Company, (2) outside the United
States in accordance with Regulation S, or (3) inside the United States
in accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) an exemption
from registration under the 1933 Act (including the exemption provided
by Rule 144), if available.
(v) Minimum Amount. No sale of the Capital Securities to any
one Subsequent Purchaser will be in blocks of less than U.S. $100,000
liquidation amount.
(vi) Restrictions on Transfer. The transfer restrictions and
the other provisions of the Declaration, including the legend required
thereby, shall apply to the Capital Securities except as otherwise
agreed by the Offerors and the Initial Purchaser. Following the sale of
the Capital Securities by the Initial Purchaser to Subsequent
Purchasers pursuant to the terms hereof, the Initial Purchaser shall
not be liable or responsible to the Offerors for any losses, damages or
liabilities suffered or incurred by the Offerors, including any losses,
damages or liabilities under the 1933 Act, arising from or relating to
any resale or transfer of any Capital Security.
(vii) Delivery of Offering Memorandum. The Initial Purchaser
will deliver to each purchaser of the Capital Securities from the
Initial Purchaser, in connection with their original distribution of
the Capital Securities, a copy of the Offering Memorandum, as amended
and supplemented at the date of such delivery.
(b) Covenants of the Offerors. Each of the Offerors, jointly and
severally, covenant with the Initial Purchaser as follows:
(i) Due Diligence. In connection with the original
distribution of the Capital Securities, the Offerors agree that, prior
to any offer or sale of the Capital Securities by the Initial
Purchaser, the Initial Purchaser and counsel for the Initial Purchaser
shall have the right to make reasonable inquiries into the business of
the Trust, the Company and its subsidiaries. The Offerors also agree to
provide information to each prospective Subsequent Purchaser of Capital
Securities who so requests concerning the Trust, the Company and its
subsidiaries (to the extent that such information is available or can
be acquired and made available to prospective Subsequent Purchasers
without unreasonable effort or expense and to the extent the provision
thereof is not prohibited by applicable law) and the terms and
conditions of the offering of the Securities, as provided in the
Offering Memorandum.
(ii) Integration. The Offerors agree that they will not and
will cause their Affiliates not to make any offer or sale of securities
of the Offerors of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer or
sale would render invalid (for the purpose of (i) the sale of the
Capital Securities by the Trust to the Initial Purchaser, (ii) the
resale of the Capital Securities by the Initial Purchaser to Subsequent
Purchasers or (iii) the resale of the Capital Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by
Rule 144A or by Regulation S thereunder or otherwise.
(iii) Rule 144A Information. The Company agrees that, in order
to render the Capital Securities eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Capital Securities remain
outstanding, the Company will make available, upon request, to any
holder of Capital Securities or prospective purchasers of Capital
Securities the information specified in Rule 144A(d)(4), unless such
information is furnished to the Commission pursuant to Section 13 or
15(d) of the 1934 Act (such information, whether made available to
holders or prospective purchasers or furnished to the Commission, is
herein referred to as "Additional Information").
(iv) Restriction on Repurchases. Until the expiration of two
years (or such shorter period as may hereafter be referred to in Rule
144(k) (or similar successor rule)) after the original issuance of the
Capital Securities, the Offerors will not, and will cause their
Affiliates not to, purchase or agree to purchase or otherwise acquire
any Capital Securities which are "restricted securities" (as such term
is defined under Rule 144(a)(3) under the 1933 Act), whether as
beneficial owner or otherwise unless, immediately upon any such
purchase, the Offerors or any Affiliate shall submit such securities to
the Trustee for cancellation.
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. The
Initial Purchaser understands that the Capital Securities have not been and will
not be registered under the 1933 Act and may not be offered or sold within the
United States or to, or for the account or benefit of U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. The Initial Purchaser, ,
represents and agrees, that, except as permitted below, it have offered and sold
Capital Securities and will offer and sell Capital Securities (i) as part of its
distribution at any time and (ii) otherwise until forty days after the later of
the date upon which the offering of the Capital Securities commences and the
Closing Time, only in accordance with Rule 903 of Regulation S or Rule 144A
under the 1933 Act or to Institutional Accredited Investors. Accordingly,
neither the Initial Purchaser, any of its Affiliates nor any persons acting on
their behalf have engaged or will engage in any directed selling efforts with
respect to Capital Securities, and the Initial Purchaser, its Affiliates and any
person acting their behalf have complied and will comply with the offering
restriction requirements of Regulation S. The Initial Purchaser agrees that, at
or prior to confirmation of a sale of Capital Securities (other than a sale of
Capital Securities pursuant to Rule 144A or to Institutional Accredited
Investors), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
or through it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been
registered under the United States Securities Act of
1933 (the "Securities Act") and may not be offered or
sold within the United States or to or for the
account or benefit of U.S. persons (i) as part of
their distribution at any time and (ii) otherwise
until forty days after the later of the date upon
which the offering of the Securities commenced and
the date of closing, except in either case in
accordance with Regulation S or Rule 144A under the
Securities Act. Terms used above have the meaning
given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
The Initial Purchaser represents and agrees that it has not entered and
will not enter into any contractual arrangements with respect to the
distribution of the Capital Securities, except with its affiliates or with the
prior written consent of the Offerors.
(d) Compliance with United Kingdom Law. The Initial Purchaser
represents and agrees that (i) it has not offered or sold and, prior to the
expiration of the period of six months from the date hereof, will not offer or
sell any Capital Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (ii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
them in connection with the issue of the Capital Securities to a person who is
of a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on, and (iii) it has
complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 with respect to anything done by it in relation to any Capital
Securities in, from or otherwise involving the United Kingdom.
(e) Compliance with Other Laws. The Initial Purchaser acknowledges that
no action has been taken to permit a public offering of the Capital Securities
in any jurisdiction outside of the United States where action would be required
for such purpose. The Initial Purchaser agrees that it will not offer or sell
any Capital Securities in any jurisdiction outside of the United States except
under circumstances that will result in compliance with all applicable laws
thereof.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchaser. The Offerors agree to jointly
and severally indemnify and hold harmless each the Initial Purchaser and each
person, if any, who controls the Initial Purchaser within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact included in the Final
Offering Memorandum (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to the third sentence of Section 7(c) hereof, the
fees and disbursements of counsel chosen by the Initial Purchaser),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent (i) arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Offerors by the
Initial Purchaser expressly for use in the Offering Memorandum (or any amendment
thereto) or (ii) resulting from the fact that one or more Initial Purchaser sold
Capital Securities to a person to whom there was not sent or given a copy of the
Preliminary Offering Memorandum or of the Final Offering Memorandum as then
amended or supplemented (excluding documents incorporated by reference) if the
Offerors previously have furnished copies thereof to the Initial Purchaser.
(b) Indemnification of Offerors, Directors and Officers. The Initial
Purchaser agrees to indemnify and hold harmless the Company, its directors and
officers, the Trust, each of the Administrative Trustees and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Offering Memorandum in
reliance upon and in conformity with written information furnished to the
Company by the Initial Purchaser expressly for use in the Offering Memorandum.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 7(a) above, counsel to the indemnified parties shall be selected by
the Initial Purchaser, and in the case of parties indemnified pursuant to
Section 7(b) above, counsel to the indemnified parties shall be selected by the
Offerors. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 7 or Section 8 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
SECTION 8. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in
Section 7 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Initial Purchaser on the other hand from the offering of the
Capital Securities pursuant to this Agreement 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 of the
Initial Purchaser, on the other hand, in connection with the statements or
omissions which resulted in such losses liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Initial Purchaser on the other hand in connection with the offering of the
Capital Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Initial
Purchaser, bear to the aggregate initial offering price of the Capital
Securities.
The relative fault of the Offerors, on the one hand, and the Initial
Purchaser, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statements of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Initial Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Offerors and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, the Initial Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Capital Securities purchased by it and distributed
to the public were offered to the public exceeds the amount of any damages which
the Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls the
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Initial
Purchaser, and each officer and director of the Company, each Administrative
Trustee of the Trust, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company and the Trust.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or trustees of the Trust
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Initial Purchaser or
any controlling person, or by or on behalf of the Trust or the Company, and
shall survive delivery of the Capital Securities to the Initial Purchaser.
SECTION 10. Termination of Agreement.
(a) The Initial Purchaser may terminate this Agreement, by notice to
the Company, at any time at or prior to Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Offering Memorandum, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Trust or 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 material adverse change in the
financial markets in the United States or elsewhere, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Initial Purchaser, impracticable to market the Capital
Securities or to enforce contracts for the sale of the Capital Securities, or
(iii) if trading in any securities of the Company has been suspended or limited
by the Commission, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the over-the-counter market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal, New York or Massachusetts authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 7 and 8 shall
survive such termination and remain in full force and effect.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchaser shall be directed to the Initial Purchaser Xxxxx, Xxxxxxxx & Xxxxx,
Inc. at Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx
X. Xxxxxxxx, with a copy to Xxxxxx & Bird LLP , 601 Pennsylvania Avenue, N.W.,
North Building, 11th Floor, Washington, D.C., 20004., Attention of Xxxxx X.
Xxxxxx, III, notices to the Offerors shall be directed to HUBCO, Inc., 0000
XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention of X. Xxxx Van
Borkulo-Xxxxx, Esq. with a copy to Pitney, Xxxxxx, Xxxx & Xxxxx, Attention of
Xxxxxx Xxxxx, Esq.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Initial Purchaser and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchaser and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchaser and the
Offerors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchaser and the Offerors in accordance with its terms. The
execution and delivery of this Agreement by the Offerors and its acceptance,
execution and delivery by or on behalf of the Initial Purchaser may be evidenced
by an exchange of telecopied or other written communications.
Very truly yours,
HUBCO, INC.
X. XXXX VAN BORKULO-XXXXX
By:---------------------------------------------
Title: Executive Vice President and
Corporate Secretary
HUBCO CAPITAL TRUST II
By: HUBCO, INC.
as Sponsor
X. XXXX VAN BORKULO-XXXXX
By:------------------------------------------
Title: Administrative Trustee
CONFIRMED AND ACCEPTED, as
of the date first above
written:
XXXXX, XXXXXXXX & XXXXX, INC.
XXXXXX XXXXXXX
By:------------------------
Title: Senior Vice President
SCHEDULE A
Number of Capital
Name of Initial Purchaser Securities
Xxxxx, Xxxxxxxx & Xxxxx, Inc. ................................. 50,000
Total ....................................................... 50,000
EXHIBIT A
Opinion of Pitney, Xxxxxx, Xxxx & Xxxxx, Counsel for the Company to the
effect that:
EXHIBIT B
Form of Opinion of Morris, Nichols, Arsht & Xxxxxxx, Special Delaware
Counsel to the Offerors.
EXHIBIT C
Form of Opinion of Xxxxx, Xxxxxx & Xxxxxx, LLP