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Exhibit 1
HUNTINGTON CAPITAL II
HUNTINGTON CAPITAL III
HUNTINGTON CAPITAL IV
HUNTINGTON CAPITAL V
HUNTINGTON CAPITAL VI
Preferred Securities
guaranteed to the extent set forth in Guarantees by
HUNTINGTON BANCSHARES INCORPORATED
Underwriting Agreement Standard Provisions
(June ___, 1998)
From time to time, Huntington Capital II, Huntington Capital
III, Huntington Capital IV, Huntington Capital V and Huntington Capital VI, each
a statutory business trust formed under the laws of the State of Delaware (each
a "Trust" and collectively, the "Trusts"), and Huntington Bancshares
Incorporated, a Maryland corporation (the "Company"), as Sponsor of each Trust
and as Guarantor, may enter into one or more Underwriting Agreements (each an
"Underwriting Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, which shall provide that the Trust
identified in the applicable Underwriting Agreement (such Trust being the
"Designated Trust" with respect to such Underwriting Agreement) shall issue and
sell to the firms named in Schedule I to the applicable Underwriting Agreement
(such firms constituting the "Underwriters" with respect to such Underwriting
Agreement and the securities specified therein) certain of its preferred capital
securities (the "Securities") identified in Schedule I to the applicable
Underwriting Agreement (with respect to such Underwriting Agreement, the
"Designated Securities") representing undivided beneficial interests in the
assets of the Designated Trust. The proceeds of the concurrent sales of the
Designated Securities to the public and of the common securities of the
Designated Trust (the "Common Securities") to the Company are to be invested in
junior subordinated debentures of the Company with respect to such Designated
Securities (with respect to such Underwriting Agreement, the "Subordinated
Debentures"), to be issued pursuant to a junior subordinated indenture dated as
of June 4, 1998, between the Company and The Chase Manhattan Bank, as trustee
(the "Indenture"). The Designated Securities may be exchangeable into
Subordinated Debentures as specified in Schedule II to such Underwriting
Agreement. The Designated Securities will be guaranteed by the Company to the
extent set forth in the Underwriting Agreement with respect to such Designated
Securities (with respect to such Underwriting Agreement, the "Guarantee").
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The Company and the Trusts have filed with the Securities and
Exchange Commission (the "Commission") a registration statement, including a
prospectus, relating to the Subordinated Debentures, the Securities and the
Guarantees and have filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), specifically relating
to the Designated Securities, the related Guarantee and the Subordinated
Debentures offered pursuant to this Agreement. The registration statement as
amended at the date of this Agreement, including information, if any, deemed to
be part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act is hereinafter referred to as the
"Registration Statement." The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Designated Securities, together with the Basic Prospectus. As used herein,
the terms "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement", "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Underwriting Agreement relating thereto
and in or pursuant to the amended and restated declaration of trust identified
in such Underwriting Agreement (with respect to such Underwriting Agreement, the
"Declaration").
1. The Underwriting. Particular sales of Designated Securities
may be made from time to time to the Underwriters of such Designated Securities,
for whom the firms designated as representatives of the Underwriters of such
Designated Securities in the Underwriting Agreement relating thereto will act as
representatives (the "Representatives"). The term "Representatives" also refers
to a single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative.
These Underwriting Agreement Standard Provisions shall not be construed as an
obligation of any Trust to sell any of its preferred securities or as an
obligation of any Underwriters to purchase any of such capital securities. The
obligation of any Trust to issue and sell any of its capital securities and the
obligation of any Underwriters to purchase any of such capital securities shall
be evidenced by the Underwriting Agreement with respect to the Designated
Securities specified therein. Each Underwriting Agreement shall specify the
maximum number of Designated Securities, the initial public offering price of
such Designated Securities or the manner of determining such price, the terms of
the Designated Securities, including the terms on which and terms of the
securities into which the Designated Securities will be exchangeable, the
purchase
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price to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters, the number of such Designated Securities to be purchased by
each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery of
such Designated Securities and payment therefor. The Underwriting Agreement
shall also specify (to the extent not set forth in the Declaration with respect
thereto or the Registration Statement and Prospectus as amended or supplemented)
the terms of such Designated Securities. Any Underwriting Agreement shall be in
the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The standard provisions set forth herein will be incorporated by
reference in any Underwriting Agreement. The obligations of the Underwriters
under each Underwriting Agreement shall be several and not joint.
2. Representations and Warranties. Each of the Designated
Trust and the Company, jointly and severally, represents and warrants to, and
agrees with, each of the Underwriters that:
(a) The Registration Statement has been declared effective; no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such
documents 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 not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not 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 not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Designated
Trust or the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
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(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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 not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Designated Trust or the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated
Securities or to that part of the Registration Statement which shall
constitute the Statement of Eligibility under the Trust Indenture Act
(Form T-1) of The Chase Manhattan Bank;
(d) The Designated Trust has been duly created and is validly
existing as a business trust in good standing under the Business Trust
Act of the State of Delaware (the Delaware Business Trust Act), with
power and authority (trust and other) to own its property and conduct
its business as described in the Prospectus, and to enter into and
perform its obligations under this Agreement and the Designated
Securities and to consummate the transactions contemplated by the
Underwriting Agreement with respect to such Designated Securities
(including without limitation the provisions hereof incorporated by
reference therein) and the Declaration of the Designated Trust; the
Designated Trust has conducted and will conduct no business other than
the transactions contemplated by the Underwriting Agreement (including
without limitation the provisions hereof incorporated by reference
therein) and described in the Prospectus as amended and supplemented
with respect to the Designated Securities; the Designated Trust is not
a party to or bound by any agreement or instrument other than the
Underwriting Agreement with respect to the sale of such Designated
Securities (including without limitation the provisions hereof
incorporated by reference therein), and the Declaration of the
Designated Trust and the agreements and instruments contemplated by
such Declaration and described in the Prospectus as amended and
supplemented with respect to the Designated Securities; the Designated
Trust has no liabilities or obligations other than those arising out of
the transactions contemplated by the Underwriting Agreement with
respect to such Designated Securities (including without limitation the
provisions hereof incorporated by reference therein) and the
Declaration of the Designated Trust and described in the Prospectus as
amended and supplemented with respect to such Designated Securities;
the Designated Trust is not a party to or subject to any action, suit
or proceeding of any nature;
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the Designated Trust is not, and at the Time of Delivery (as defined in
Section 4 hereof) will not be, classified as an association taxable as
a corporation for United States federal income tax purposes;
(e) The Designated Securities have been duly authorized on
behalf of the Designated Trust by the Company, as sponsor of the
Designated Trust, and, when the Designated Securities are issued and
delivered pursuant to the Underwriting Agreement (including without
limitation the provisions hereof incorporated by reference therein)
with respect to such Designated Securities, will have been duly and
validly issued and fully paid and non-assessable beneficial interests
in the Designated Trust entitled to the benefits provided by the
Declaration which will be substantially in the form filed as an exhibit
to the Registration Statement; and the capital securities of the
Designated Trust conform to the description thereof contained in the
Registration Statement and the Designated Securities will conform to
the description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(f) The holders of the Designated Securities (the
"Securityholders") 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;
the issuance of the Designated Securities is not subject to preemptive
or similar rights;
(g) The Common Securities of the Designated Trust have been
duly authorized on behalf of the Designated Trust by the Company, as
sponsor of the Designated Trust, and upon delivery by the Designated
Trust to the Company against payment therefor as set forth in the
Declaration, will be duly and validly issued, fully paid, beneficial
interests in the Designated Trust and will conform to the description
thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at
the Time of Delivery, all of the issued and outstanding Common
Securities of the Designated Trust will be directly owned by the
Company free and clear of liens, encumbrances, equities or claims;
(h) The Guarantee, the Declaration, the Subordinated
Debentures, and the Indenture (the Guarantee, the Declaration, the
Subordinated Debentures and the Indenture being collectively referred
to as the "Company Agreements") have each been duly authorized and when
validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee (as defined in the Guarantee), in
the case of the Declaration, by the Declaration Trustees (as defined in
the Declaration) and, in the case of the Indenture, by the Trustee
named therein (the "Debenture Trustee"), and, in the case of the
Subordinated
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Debentures, when validly issued by the Company and validly
authenticated and delivered by the Debenture Trustee, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Declaration,
the Indenture and the Guarantee have each been duly qualified under the
Trust Indenture Act; the Subordinated Debentures are entitled to the
benefits of the Indenture; and the Company Agreements, which will be in
substantially the form filed as exhibits to the Registration Statement,
will conform to the descriptions thereof in the Prospectus as amended
or supplemented with respect to the Designated Securities to which they
relate;
(i) The execution, delivery and performance of this
Agreement, the Declaration, the Common Securities and the Designated
Securities by the Trust, the issue and sale of the Designated
Securities, the purchase of the Junior Subordinated Debentures by the
Designated Trust from the Company, the distribution of the Junior
Subordinated Debentures upon the liquidation of the Designated Trust
in the circumstances contemplated by the Declaration and described in
the Prospectus, and the consummation of the transactions contemplated
herein and in the Declaration (the "Trust Transactions") or this
Agreement, will not result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Designated Trust, and no consent,
approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the
Trust Transactions except for such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters.
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(j) The execution, delivery and performance of this Agreement,
the Guarantee Agreement, the Indenture and the Junior Subordinated
Debentures, by the Company, the purchase of the Common Securities by
the Company from the Designated Trust, and the consummation by the
Company of the transactions herein (the "Company Transactions") 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,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, nor will such Company Transactions result in any violation of
the provisions of the Articles of Incorporation, as amended, or the
By-Laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the Company
Transactions except for such consents, approvals, authorizations,
registrations, or qualifications as may be required under the state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters.
(k) The Underwriting Agreement with respect to the Designated
Securities (incorporating the provisions hereof) has been duly
authorized, executed and delivered by the Company and the Designated
Trust;
(l) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the Company
or any of its subsidiaries is subject, involving potential losses with
a reasonably possible unfavorable final outcome against the Company or
any of its subsidiaries that is expected individually or in the
aggregate, to have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(m) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC Act");
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(n) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(o) Neither the Designated Trust nor the Company is, nor after
giving effect to the offering and sale of the Designated Securities
will either 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");
(p) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree otherwise than
as set forth or contemplated in the Prospectus (exclusive of any
amendments or supplement thereto subsequent to the date of the
Agreement); and, since the date as of which information is given in the
Prospectus, there has not been any change in the consolidated
shareholders' equity (other than as a result of earnings to date and
issuances pursuant to the Company's dividend reinvestment plan or under
any employee stock or benefit plan, regular quarterly dividends, and
changes in net unrealized gains (losses) on securities available for
sale) or any material change in long-term debt of the Company and its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus
(excluding any amendments or supplements thereto subsequent to the date
of this Agreement);
(q) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the securities
registered pursuant to the Registration Statement; and
(r) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
3. Public Offering. The Designated Trust and the Company are
advised by the Representative that the Underwriters propose to make a public
offering of
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their respective portions of the Designated Securities as soon after this
Agreement has been entered into as in the Representative's judgment is
advisable. The terms of the public offering of the Designated Securities are set
forth in the Prospectus.
4. Purchase and Delivery. Payment for the Designated
Securities shall be made to the Designated Trust in Federal or other funds
immediately available in New York City at the time and place set forth in the
Underwriting Agreement (the "Time of Delivery"), upon delivery to the
Representative for the respective accounts of the several Underwriters of the
Designated Securities registered in such names and in such denominations or
amounts, as the case may be, as the Representative shall request in writing not
less than one full business day prior to the date of the delivery.
5. Conditions to Closing. The obligations of the Underwriters
of any Designated Securities under the Underwriting Agreement relating to such
Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Designated Trust and the Company in or incorporated by
reference in the Underwriting Agreement relating to such Designated Securities
are, at the Time of Delivery for such Designated Securities, true and correct,
the condition that the Designated Trust and the Company shall have performed all
of their respective obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued under
the Securities Act and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) If required under the Underwriting Agreement relating to
such Designated Securities, Xxxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to the Representatives such opinion
or opinions, dated each Time of Delivery for such Designated
Securities, with respect to the incorporation of the Company, the
validity of the Designated Securities, the Subordinated Debentures, the
Guarantee, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters; in rendering such opinion Xxxxxxxx & Xxxxxxxx may
rely as to the incorporation of the Company and all other matters of
Maryland law upon the opinion of Porter, Wright, Xxxxxx & Xxxxxx
referred to in paragraph [__] hereof and as to all matters of Delaware
law upon the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A. referred to in
paragraph [_] hereof;
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(c) With respect to the Designated Securities subsequent to
the execution and delivery of the Underwriting Agreement and prior to
the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the securities of the Company or
any of its subsidiaries by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Designated Securities on
the terms and in the manner contemplated in the Prospectus;
(d) Porter, Wright, Xxxxxx & Xxxxxx, independent counsel to
the Company, shall have furnished to the Representatives their opinion
or opinions, dated each Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Maryland and the Company has the corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented
relating to the Designated Securities and is duly registered
as a bank holding company under the BHC Act;
(ii) The Huntington National Bank has been duly
organized, is validly existing as a national bank in good
standing under the laws of the United States, has the power
and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
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(iii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented thereto
relating to the Designated Securities; and all of the issued
shares of capital stock of The Huntington National Bank have
been duly and validly authorized and issued and are fully paid
and non-assessable (subject to the provisions of 12 U.S.C.
ss.55) and to the best knowledge of such counsel are
beneficially owned, directly or indirectly, by the Company,
subject to no security interest, other encumbrance or adverse
claim, except as otherwise stated in the Prospectus as amended
or supplemented relating to the Designated Securities;
(iv) The Company Agreements each have been duly
authorized, executed and delivered by the Company and
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; the Company Agreements conform
to the descriptions thereof in the Prospectus as amended or
supplemented; the Subordinated Debentures are entitled to the
benefits provided by the Indenture; and the Declaration, the
Indenture and the Guarantee have each been duly qualified
under the Trust Indenture Act;
(v) The Subordinated Debentures being issued at such
Time of Delivery have been duly authorized in conformity with
the terms of the Indenture, and when such Subordinated
Debentures have been duly executed, authenticated and issued
in conformity with the Indenture and delivered against payment
in accordance with the Underwriting Agreement with respect to
the Designated Securities they will constitute valid and
legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(vi) The Underwriting Agreement with respect to the
Designated Securities has been duly authorized, executed and
delivered by the Company;
(vii) The Designated Securities have been duly
authorized by the Company, as Sponsor, on behalf of the
Designated Trust;
(viii) The Trust is not an "investment company"
within the meaning of the Investment Company Act;
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(ix) The execution, delivery and performance of this
Agreement and the Company Agreements by the Company and the
Designated Trust 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, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company and the Designated Trust
is a party or by which the Company or the Designated Trust is
bound or to which any of the property or assets of the Company
or the Designated Trust is subject, nor will such action
result in any violation of the provisions of the Restatement
of Charter, as amended, of the Company or the By-Laws of the
Company or the Declaration of the Designated Trust or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or the
Designated Trust or any of its property, except for such
violations and defaults as would not have a material adverse
effect on the financial position, results of operations,
business or prospects of the Company and its subsidiaries,
taken as a whole, or the Designated Trust and no consent,
approval, authorization, order, registration or qualification
of or with any court or governmental agency or body is
required for the performance by the Company or the Designated
Trust of its obligations under this Agreement and the Company
Agreements, except such consents, approvals, authorizations,
registrations or qualifications as have been obtained or may
be required under state securities or Blue Sky laws in
connection with the offer and sale of the Designated
Securities;
(x) To the best of such counsel's knowledge and other
than as set forth in the Prospectus as amended or supplemented
thereto relating to the Designated Securities, there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or to which any property
of the Company or any of its subsidiaries is subject,
involving potential losses with a reasonably possible
unfavorable final outcome against the Company or any of its
subsidiaries that is expected, individually or in the
aggregate, to have a material adverse effect on the
consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries
taken as a whole; and to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xi) The statements set forth in the Prospectus under
the captions "Description of the Subordinated Debentures",
"Description of the Capital Securities", "Description of
Guarantees" and "Relationship Among the Capital Securities,
the Corresponding Subordinated Debentures, and the Guarantees"
and in the Prospectus as amended or supplemented under the
captions "Certain Terms of Series B Capital Securities" and
"Certain Terms of the Series B Subordinated Debentures",
insofar as they purport to constitute summaries of certain
terms of the Designated Securities, the Subordinated
Debentures or the Company
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Agreements, in each case constitute accurate summaries of the
terms of the Company Agreements and of such securities, as set
forth in the Company Agreements, in all material respects;
(xii) Such counsel does not know of any contracts or
other documents required to be described or referred to in or
filed or incorporated by reference as an exhibit to the
Registration Statement or the Prospectus other than those
described or referred to therein or filed as an exhibit
thereto;
(xiii) Such counsel (A) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical
data included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (B) has no reason to
believe that (except for financial statements and schedules
and other financial and statistical data as to which such
counsel need not express any belief) the Registration
Statement and the prospectus included therein at the time the
Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and (C) has no reason to
believe that (except for financial statements and schedules
and other financial and statistical data as to which such
counsel need not express any belief) the Prospectus as of the
date hereof and of the time of delivery contains any untrue
statement of a material fact 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;
(e) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware Counsel
to the Designated Trust and the Company, shall have furnished to the
Representatives, the Company and the Designated Trust such written
opinion or opinions, dated each Time of Delivery for such Designated
Securities, in form and substance satisfactory to you, to the effect
that:
(i) The Designated Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, and all filings required
under the laws of the State of Delaware with respect to the
creation and valid existence of the Designated Trust as a
business trust have been made;
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(ii) Under the Delaware Business Trust Act and the
Declaration, the Designated Trust has the trust power and
authority to own property and conduct its business, all as
described in the Prospectus;
(iii) The Declaration constitutes a valid and legally
binding obligation of the Company and the Trustees, and is
enforceable against each of the Company and the Trustees, in
accordance with its terms, subject, as to enforcement, to (i)
bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance, fraudulent
transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law) and (iii) the effect of applicable public
policy on the enforceability of provisions relating to
indemnification or contribution and, once duly and validly
issued, the Designated Securities will entitle Securityholders
to benefits of the Declaration (subject to the terms of the
Declaration);
(iv) Under the Delaware Business Trust Act and the
Declaration, the Designated Trust has the trust power and
authority to (a) execute and deliver the Underwriting
Agreement relating to the Designated Securities (incorporating
by reference the provisions hereof) and perform its
obligations under such Underwriting Agreement; (b) issue and
perform its obligations under the Designated Securities and
the Common Securities; and (c) purchase the Junior
Subordinated Debentures;
(v) Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Designated
Trust of the Underwriting Agreement relating to the Designated
Securities (incorporating by reference the provisions hereof),
and the performance by the Designated Trust of its obligations
thereunder, have been duly authorized by all necessary trust
action on the part of the Designated Trust;
(vi) The Designated Securities have been duly
authorized by the Declaration and are duly and validly issued
and, subject to the qualifications set forth herein, fully
paid and nonassessable beneficial interests in the Designated
Trust and are entitled to the benefits provided by the
Declaration; the Securityholders, as beneficial owners of the
Designated Trust, 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; provided that such
counsel may note that the Securityholders may be obligated,
pursuant to the Declaration, to (a) provide indemnity and/or
security in connection with
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and pay taxes or governmental charges arising from transfers
or exchanges of certificates representing the Designated
Securities and the issuance of replacement certificates
representing the Designated Securities and (b) provide
security and indemnity in connection with requests of or
directions to the Property Trustee (as defined in the
Declaration) to exercise its rights and remedies under the
Declaration;
(vii) The Common Securities have been duly authorized
by the Declaration and are validly issued and represent
beneficial interests in the Designated Trust;
(viii) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Designated Securities and the
Common Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of
Designated Securities and the Common Securities, the execution
and delivery of the Underwriting Agreement (incorporating by
reference the provisions hereof) with respect to the
Designated Securities and the performance by the Designated
Trust of such Underwriting Agreement, the consummation by the
Designated Trust of the transactions contemplated thereby and
the compliance by the Designated Trust with its obligations
thereunder will not violate (a) any of the provisions of the
Certificate of Trust of the Designated Trust or the
Declaration, or (b) any applicable Delaware law or
administrative regulation;
(x) The issuance, sale and delivery by the Trust of
the Designated Securities, the execution, delivery and
performance by the Trust of the Underwriting Agreement, the
purchase by the Trust of the Debentures to be purchased by it
and the performance by the Trust of its obligations under the
Declaration, the Underwriting Agreement and the Designated
Securities do not result in a violation of the Declaration,
the Certificate or any Delaware law (statutory or decisional)
or Delaware regulation. No authorization, approval, consent or
order of any Delaware court or any Delaware governmental
authority or Delaware agency is required to be obtained by the
Trust solely in connection with the issuance and sale of the
Trust Securities. After due inquiry on ___________, 1998,
limited to, and solely to the extent disclosed thereupon,
court dockets for active cases in the Court of Chancery of the
State of Delaware in and for New Castle County, Delaware, of
the Superior Court of the State of Delaware in and for New
Castle County, Delaware, and of the United States District
Court sitting in the State of Delaware, we are not aware of
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any legal or governmental proceeding pending against the
Designated Trust.
(xi) Assuming that the Designated Trust derives no
income from or connected 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, no authorization, approval, consent or
order of any Delaware court or governmental authority or
agency is required to be obtained by the Designated Trust
solely in connection with the issuance and sale of the
Designated Securities and the Common Securities. In rendering
the opinion expressed in this paragraph (x), such counsel need
express no opinion concerning the securities laws of the State
of Delaware; and
(xii) Assuming that the Designated Trust derives no
income from or connected with services provided 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 Securityholders (other
than those holders of the Designated 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 Designated Trust, and the
Designated Trust will not be liable for any income tax imposed
by the State of Delaware;
(f) Porter, Wright, Xxxxxx & Xxxxxx, tax counsel for the
Designated Trust and the Company, shall have furnished to you their
written opinion, dated the respective Time of Delivery, in form and
substance satisfactory to you, to the effect that such firm confirms
its opinion set forth in the Prospectus as amended or supplemented
under the caption "Certain United States Federal Income Tax
Consequences";
(g) The Representatives shall have received, on each of the
date hereof and the Time of Delivery, letters dated the date hereof and
the Time of Delivery, as the case may be, in form and substance
satisfactory to the Representatives, from Ernst & Young LLP,
independent public accountants, and BDO Xxxxxxx, LLP, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Time of Delivery shall use a
"cut-off date" not earlier than the date hereof;
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(h) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended and
supplemented with respect to the Designated Securities there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as so amended and supplemented,
the effect of which is in the Representatives' judgment after
consultation with the Company so material and adverse as to make it
impractical or inadvisable to proceed with the public offering of the
Designated Securities on the terms and in the manner contemplated in
the Prospectus as so amended and supplemented;
(i) On or after the date of the Underwriting Agreement
relating to the Designated Securities, there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the Nasdaq National Market; (ii) a
general moratorium on commercial banking activities declared by either
Federal or Ohio state authorities; or (iii) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this subsection (j) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the Prospectus relating
to the Designated Securities; and
(j) The Designated Trust and the Company shall have furnished
or caused to be furnished to the Representatives at each Time of
Delivery for the Designated Securities certificates of officers of the
Designated Trust and the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Designated
Trust and the Company herein at and as of such Time of Delivery, as to
the performance by each of the Designated Trust and the Company of all
of its obligations hereunder to be performed at or prior to such Time
of Delivery, as to the matters set forth in subsections (a) and (c) of
this Section and as to such other matters as the Representatives may
reasonably request.
6. Reimbursements by the Company. The Company covenants and
agrees with the several Underwriters that the Company will pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the Trusts' and
the Company's counsel and accountants in connection with the registration of the
capital securities of the Trusts and the guarantees and junior subordinated
debentures of the Company under the Securities Act and all other fees or
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the
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Prospectus and amendments and supplements thereto and the reasonable mailing and
delivering of copies thereof to the Underwriters and dealers in the reasonable
quantities hereinabove specified; (ii) the cost of printing or producing any
Agreement among Underwriters, these standard provisions, the Underwriting
Agreement, the Declaration, the Indenture, the Guarantee, any Blue Sky or
similar investment surveys or memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Designated Securities; (iii) all expenses in
connection with the qualification of the Designated Securities, the Guarantee
and the Subordinated Debentures for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment surveys; (iv) any fees charged
by securities rating services for rating the Designated Securities and the
Subordinated Debentures; (v) the cost of preparing the Designated Securities and
the Subordinated Debentures; (vi) the fees and expenses of any Trustee,
Debenture Trustee and Guarantee Trustee, and any agent of any trustee and the
fees and disbursements of counsel for any trustee in connection with the
Declaration, the Indenture, the Guarantee and the Designated Securities; (vii)
the cost of qualifying the Designated Securities with The Depository Trust
Company; (viii) fees and expenses in connection with listing the Designated
Securities (and the Subordinated Debentures, if necessary) on the Nasdaq
National Market or such other exchange or market and the cost of registering the
Designated Securities (and the Subordinated Debentures, if necessary) under
Section 12 of the Exchange Act in the event the Designated Securities are listed
on an exchange or market; and (ix) the costs and expenses of the Company
relating to investor presentations on any "road show" undertaken in connection
with the marketing of the offering of the Designated Securities, including,
without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show. It is understood, however, that, except as provided in this Section 6,
Section 7 and Section 10 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees and disbursements of their counsel,
transfer taxes on resale of any of the Designated Securities by them, and any
advertising expenses connected with any offers they may make.
7. Indemnity and Contribution.
(a) The Company and the Designated Trust will, jointly and
severally indemnify and hold harmless each Underwriter, and each
person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, such
Underwriter, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or
other expenses
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reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement,
any amendment thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by or on behalf of an
Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Designated Trust, the Trustees, the
Administrator, the Company, its directors, its officers, and each
person, if any, who controls the Designated Trust or the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Designated Trust or the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Designated Trust or the Company in writing by an Underwriter through
you expressly for use in the Registration Statement and the Prospectus
or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either paragraph 7(a) or 7(b)
above, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the
same counsel would be inappropriate, in the reasonable judgement of the
indemnified party, because of actual or potential differing interests
between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection
with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in
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addition to any local counsel) for (i) all Underwriters and all
persons, if any, who control any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act and (ii) the Designated Trust, the Trustees, the Company, its
directors, its officers and each person, if any, who controls the
Designated Trust or the Company with the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, and that all
such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Underwriters and such control
persons of the Underwriters, such firm shall be designated in writing
by the Representatives. In the case of any such separate firm for the
Designated Trust or the Company, and such directors, trustees, officers
and control persons of the Designated Trust or the Company, such firm
shall be designated in writing by the Designated Trust or the Company.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph 7(a) or 7(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Designated Securities or (ii) if the allocation provided by clause
7(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to
in clause 7(d)(i) above but also the relative fault of the
indemnifying party or parties on the one hand and of the
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indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Designated Trust or the Company
on the one hand and the Underwriters on the other hand in connection
with the offering of the Designated Securities shall be deemed to be in
the same respective proportions as the net proceeds from the offering
of such received by the Underwriters in respect thereof, in each case
as set forth in the Prospectus, bear to the aggregate offering price of
such. The relative fault of the Designated Trust or the Company on the
one hand and of the Underwriters on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Designated Trust or the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are
several in proportion to the respective number of Designated Securities
they have purchased hereunder, not joint.
(e) The Company, the Designated Trust and the Underwriters
agree that it would not be just or equitable if contribution pursuant
to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) of this Section 7. The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7,
no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Designated Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements
of the Designated Trust or the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling such Underwriter or
by or on behalf of the Designated Trust or the Company, its
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officers, trustees or directors or any person controlling the
Designated Trust or the Company and (iii) acceptance of and payment for
any of the Designated Securities. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
8. Defaulting Underwriters. If, at the Time of Delivery, any
one or more of the Underwriters shall fail or refuse to purchase Designated
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Designated Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Designated
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Designated Securities
set forth opposite their respective names in the Underwriting Agreement bears to
the aggregate liquidation amount of Designated Securities set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
the Representative may specify, to purchase the Designated Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the liquidation amount of
Designated Securities that any Underwriter has agreed to purchase pursuant to
this Agreement be increased pursuant to this Section 8 by an amount in excess of
one-ninth of such principal amount of Designated Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Designated Securities and the
aggregate number of Designated Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Designated
Securities to be purchased, and arrangements satisfactory to the Representative
and the Designated Trust and the Company for the purchase of such Designated
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Representative or the Designated Trust and
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
9. Covenants. Each of the Designated Trust and the Company,
jointly and severally, agrees with each of the Underwriters of any Designated
Securities:
(a) To file the Prospectus as amended or supplemented with
respect to the Designated Securities with the Commission; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the
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Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Designated Securities; to
advise the Representatives, promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Designated Securities, of the suspension of the qualification of such
Designated Securities or the Subordinated Debentures issuable upon
termination of the Designated Trust for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Designated Securities or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities or the Subordinated Debentures issuable upon termination of
the Designated Trust for offering and sale under the securities laws of
such jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Designated Securities, provided that
in connection therewith neither the Designated Trust nor the Company
shall be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish to the Underwriters, without charge, such
number of signed copies of the Registration Statement (including
exhibits thereto) as the Underwriters may reasonably request and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 9(e) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request;
(d) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule;
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(e) If, during such period after the first date of the public
offering of the Designated Securities as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Designated Securities may have been sold by you on behalf of
the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law;
(f) To endeavor to qualify the Designated Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request;
(g) In the case of the Company, to make generally available to
its security holders as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(h) During the period beginning from the date of the
Underwriting Agreement for such Designated Securities and continuing to
and including the earlier of (i) the termination of trading
restrictions for such Designated Securities, as notified to the Company
by the Representatives and (ii) the Time of Delivery for such
Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any capital
securities in any of the Trusts, any other beneficial interests in the
assets of the Designated Trust or any other Trust, or any capital
securities or any other securities of the Designated Trust or the
Company, as the case may be, that are substantially similar to such
Designated Securities (including any guarantee of such securities) or
any securities that are convertible into or exchangeable for, or that
represent the right to receive securities, capital securities or any
such substantially similar securities of either the Designated Trust,
any other Trust or the Company that are subordinated to the
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Senior Indebtedness (as defined in the Indenture) of the Company in a
manner substantially similar to the subordination of the Subordinated
Debentures without the prior written consent of the Representatives;
(i) In the case of the Company, to issue the Guarantee
concurrently with the issue and sale of the Designated Securities as
contemplated in the Underwriting Agreement with respect to the
Designated Securities and in the Prospectus Supplement as amended and
supplemented with respect to the Designated Securities;
(j) To furnish to the holders of the Designated Securities as
soon as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, shareholders'
equity and cash flow of the Company and its consolidated subsidiaries
certified by independent public accountants); and
(k) If the Company and the Designated Trust elect to rely upon
Rule 462(b), the Company and the Designated Trust shall file a Rule
462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
Underwriting Agreement with respect to the Designated Securities, and
the Company and the Designated Trust shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Securities Act.
10. Survival of Representations, Warranties and Covenants. The
respective indemnities, agreements, representations, warranties and other
statements of the Designated Trust, the Company and the several Underwriters, as
set forth herein or made by or on behalf of them, respectively, pursuant hereto,
shall remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Designated Trust, the Company,
or any officer or director or Trustee or controlling person of the Designated
Trust or the Company, and shall survive delivery of and payment for the
Designated Securities.
11. Expenses. If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
the Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
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12. Representative; Notices. In all dealings hereunder, the
Representatives of the Underwriters of Designated Securities shall act on behalf
of each of such Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the
Underwriting Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Underwriting Agreement; and if to the Designated Trust or the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Designated Trust or the Company, as the case may be, set
forth in the Registration Statement, Attention: Secretary. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. Binding Effect. Each Underwriting Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the
Designated Trust and the Company and, to the extent provided in Section 7 and
Section 10 hereof, the officers and directors of the Designated Trust or the
Company and each person who controls the Designated Trust, the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of any such Underwriting Agreement. No purchaser of any of the Designated
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Timeliness. Time shall be of the essence of each
Underwriting Agreement. As used herein, the term "business day" shall mean any
day when the Commission's office in Washington, D.C. is open for business.
15. Applicable Law. EACH UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. Each Underwriting Agreement may be executed
by any one or more of the parties thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
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Very truly yours,
HUNTINGTON BANCSHARES
INCORPORATED
By:
------------------------------------
Name:
Title:
HUNTINGTON CAPITAL
By:
------------------------------------
Name:
Title: Regular Trustee
Accepted as of the date hereof:
[Name(s) of Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
------------------------------------
By:
---------------------------------
Name:
Title:
On behalf of each of the Underwriters
named on Schedule I hereto
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Underwriting Agreement
To the Underwriters named in
Schedule I hereto
c/o [Names and Addresses of Representatives]
-------- ---, ----
Dear Sirs:
Huntington Capital __________, a statutory business trust formed under
the laws of the State of Delaware (the "Designated Trust"), and Huntington
Bancshares Incorporated, a Maryland corporation (the "Company"), propose,
subject to the terms and conditions stated herein and in the Underwriting
Agreement Standard Provisions (June __, 1998) (the "Standard Provisions"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the preferred securities of the Designated Trust specified in
Schedule II hereto. The Designated Securities the Underwriters may elect to
purchase are herein referred to as the "Designated Securities." Each of the
provisions of the Standard Provisions is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Underwriting Agreement to the
same extent as if such provisions had been set forth in full herein; and each of
the representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Underwriting Agreement. Each reference
to the Representatives herein and in the provisions of the Standard Provisions
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Standard Provisions are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Standard Provisions and the address of
the Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, (a) the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the
29
Underwriters set forth in Schedule II hereto, the number of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us [ten] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Designated Trust and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
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30
Very truly yours,
HUNTINGTON BANCSHARES
INCORPORATED
By:
----------------------------------
Name:
Title:
HUNTINGTON CAPITAL
By: Huntington Bancshares
Incorporated, as Sponsor
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
------------------------------------
By:
---------------------------------
Name:
Title:
On behalf of each of the Underwriters
named on Schedule I hereto
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SCHEDULE I
(TO UNDERWRITING AGREEMENT)
Number of
Designated
Securities to
be Purchased
-------------------
Underwriter
---------------
[Names of Representatives]..........................
[Name of Underwriters]..............................
Total
------------------------------
==============================
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SCHEDULE II
(TO PRICING AGREEMENT)
DESIGNATED TRUST:
Huntington Capital __________
TITLE OF DESIGNATED SECURITIES:
_____% ________________________ Securities, Series ____
AGGREGATE PRINCIPAL AMOUNT:
[Aggregate liquidation amount] [Number] of Designated Securities:
[$] _____________
INITIAL OFFERING PRICE TO PUBLIC
[$ _____ per Designated Security] [_____% of the principal amount of
the Designated Securities]
PURCHASE PRICE BY UNDERWRITERS:
[$ _____ per Designated Security][_____% of the principal amount of the
Designated Securities]
UNDERWRITERS' COMPENSATION:
$____ per Designated Security
FORM OF DESIGNATED SHARES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated custodian,
to be made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
ACCOUNT FOR PAYMENT OF PURCHASE PRICE:
-------------------------------------
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Declaration:
Amended and Restated Declaration dated _______________, between the
Company and the Trustees named therein.
GUARANTEE:
Guarantee Agreement, dated as of ___________________, between Company,
as guarantor, and Guarantee Trustee.
SUBORDINATED DEBENTURES:
_____% Junior Subordinated Debentures, Series _____
MATURITY:
INTEREST RATE: [Insert Float Rate Terms, if applicable.]
_____%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
[10 semi-annual periods]
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
No sinking fund provisions.
[LISTING:
The Company and the Designated Trust shall each use its best efforts to
list, subject to notice of issuance, the Designated Securities on the
______________ and, if the Corporation elects to terminate the Designated Trust
and to distribute the Subordinated Debentures to the holders of the Designated
Securities in liquidation of the Designated
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Trust, to use its best efforts to list the Subordinated Debentures, subject to
notice of issuance, on the ___________________, prior to such distribution.]
[ACCOUNTANTS LETTERS AND LEGAL OPINIONS:
At each Time of Delivery, [insert relevant provisions, if required]
TIME OF DELIVERY:
9:00 a.m., New York City time _______ __, ____
NAMES OF UNDERWRITERS AND NUMBER OF DESIGNATED SECURITIES TO
BE PURCHASED:
As described on Schedule I hereto.
CLOSING LOCATION:
[Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx]
NAMES AND ADDRESSES OF REPRESENTATIVES:
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