1,200,000 SHARES
(PLUS 180,000 SHARES TO COVER OVER-ALLOTMENTS, IF ANY)
COMMUNITY BANK SYSTEM, INC.
COMMON STOCK, NO PAR VALUE
FORM OF UNDERWRITING AGREEMENT
____________ __, 2001
XXXXXX XXXXXXXXXX XXXXX LLC
ADVEST, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives (the "Representatives")
of the Several Underwriters
Named in Schedule I hereto
c/o Janney Xxxxxxxxxx Xxxxx LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
Community Bank System, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to sell to the
several Underwriters named in Schedule I hereto (the "Underwriters"), for whom
Xxxxxx Xxxxxxxxxx Xxxxx LLC, Advest, Inc. and Xxxxxxx Xxxxx & Associates, Inc.
are serving as Representatives (the "Representatives"), an aggregate of
1,200,000 shares (the "Firm Shares") of the Company's common stock, no par value
(the "Common Stock"). If the Representatives are the only firms named in
Schedule I hereto, then the terms "Underwriters" and "Representatives," as used
herein, shall each be deemed to refer to such firms.
In addition, in order to cover over-allotments in the sale of the Firm
Shares, the Underwriters may, at the Underwriters' election and subject to the
terms and conditions stated herein, purchase ratably in proportion to the
amounts set forth opposite their respective names in Schedule I hereto, up to
180,000 additional shares of Common Stock from the Company (such additional
shares of Common Stock, the "Optional Shares"). The Firm Shares and the Optional
Shares are referred to collectively as the "Shares."
The Company and the Underwriters, intending to be legally bound, hereby
confirm their agreement as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act") in connection with the
offering contemplated by this Agreement. A registration statement on Form S-3
(File No. 333-68866) with respect to the Shares, including a prospectus subject
to completion, has been filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Act, and one or more amendments to such
registration statement may have been so filed. After the execution of this
Agreement, the Company will file with the Commission either (i) if such
registration statement, as it may have been amended, has become effective under
the Act and information has been omitted therefrom in accordance with Rule 430A
under the Act, a prospectus in the form most recently included in an amendment
to such registration statement (or, if no such amendment shall have been filed,
in such registration statement) with such changes or insertions as are required
by Rule 430A or permitted by Rule 424(b) under the Act and as have been provided
to and approved by the Representatives, or (ii) if such registration statement,
as it may have been amended, has not become effective under the Act, an
amendment to such registration statement, including a form of prospectus, a copy
of which amendment has been provided to and approved by the Representatives
prior to the execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means (i) such registration statement, as amended at
the time when it was or is declared effective, including (A) all financial
statements, schedules and exhibits thereto, (B) all documents (or portions
thereof) incorporated by reference therein, and (C) any information omitted
therefrom pursuant to Rule 430A under the Act and included in the Prospectus (as
hereinafter defined) and (ii) any registration statement, if any, filed pursuant
to Rule 462(b) of the Act and any documents incorporated therein by reference;
the term "Preliminary Prospectus" means each prospectus subject to completion
included in such registration statement or any amendment or post-effective
amendment thereto (including the prospectus subject to completion, if any,
included in the Registration Statement at the time it was or is declared
effective), including all documents (or portions thereof) incorporated by
reference therein; and the term "Prospectus" means the prospectus first filed
with the Commission pursuant to Rule 424(b) under the Act or, if no prospectus
is required to be so filed, such term means the prospectus included in the
Registration Statement, in either case, including all documents (or portions
thereof) incorporated by reference therein. As used herein, any reference to any
statement or information as being "made," "included," "contained," "disclosed"
or "set forth" in any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or the Registration Statement or any amendment thereto (or
other similar references) shall refer both to information and statements
actually appearing in such document as well as information and statements
incorporated by reference therein.
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened, by the
Commission or the securities authority of any state or other jurisdiction. If
the Registration Statement has become effective under the Act, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
including any registration statement, if any, filed pursuant to Rule 462(b) of
the Act, whether effective or to hereafter become effective, has been issued and
no proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened or contemplated by the Commission or the securities
authority of any state or other jurisdiction.
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(c) When any Preliminary Prospectus was filed with the
Commission it contained all material statements required to be stated therein in
accordance with, and complied in all material respects with the requirements of,
the Act and the rules and regulations of the Commission thereunder. When the
Registration Statement or any amendment thereto was or is declared effective,
and at each Time of Delivery (as hereinafter defined), it (i) contained and will
contain all material statements required to be stated therein in accordance
with, and complied or will comply in all material respects with the requirements
of, the Act and the rules and regulations of the Commission thereunder and (ii)
did not and will not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading.
When the Prospectus or any amendment or supplement thereto is filed with the
Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or
supplement is not required to be so filed, when the Registration Statement or
the amendment thereto containing such amendment or supplement to the Prospectus
was or is declared effective) and at each Time of Delivery, the Prospectus, as
amended or supplemented at any such time, (i) contained and will contain all
material statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of, the
Act and the rules and regulations of the Commission thereunder and (ii) did not
and will not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (c) do not apply to statements or
omissions made in the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through you specifically for use therein. It is understood that the statements
set forth in the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in the eighth paragraph under
the section entitled "The Offering" and in the third, fifth, sixth, and seventh
paragraphs and the list of Underwriters under the section entitled
"Underwriting," constitute the only written information furnished to the Company
by or on behalf of any Underwriter through you specifically for use in the
Registration Statement or any amendment thereto or the Prospectus and any
amendment or supplement thereto, as the case may be.
(d) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
subsidiary are subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(e) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation or banking association in
good standing under the laws of its jurisdiction of incorporation and has full
power and authority (corporate and other) to own or lease its properties and
conduct its business as described in the Prospectus. The Company is duly
registered under the Bank Holding Company Act of 1956, as amended. The Company
has full power and authority (corporate and other) to enter into this Agreement
and to perform its obligations hereunder. Each of the Company and its
subsidiaries is duly qualified to
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transact business as a foreign corporation under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, except where the failure to so qualify would
not have a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries taken as a whole.
(f) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued shares of capital
stock of the Company, have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the descriptions of the Common Stock
contained in the Prospectus. None of the issued shares of capital stock of the
Company or any of its subsidiaries has been issued or is owned or held in
violation of any statutory (or to the knowledge of the Company, any other)
preemptive rights of shareholders, and no person or entity (including any holder
of outstanding shares of capital stock of the Company or its subsidiaries) has
any statutory (or to the knowledge of the Company, any other) preemptive or
other rights to subscribe for any of the Shares. None of the capital stock of
the Company has been issued in violation of applicable federal or state
securities laws.
(g) All of the issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55, and, except for the preferred securities
of Community Capital Trust I, are owned beneficially by the Company or one of
its subsidiaries, free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, shareholders' agreements, voting agreements,
proxies, voting trusts, equities or claims of any nature whatsoever. Other than
the outstanding capital stock of Community Bank, N.A., the outstanding common
securities of Community Capital Trust I, the outstanding common stock of
Community Financial Services, Inc., the outstanding common stock of Benefit Plan
Administrative Services, Inc., the outstanding common stock of CBNA Treasury
Management Corporation, the outstanding common stock of Community Investment
Services, Inc., the outstanding common stock of CBNA Preferred Funding Corp.,
the outstanding common stock of CFSI Close-Out Corp., the outstanding common
stock of Xxxxx Asset Management, Inc., and the equity securities held in the
investment portfolios of the Company and such subsidiaries (the composition of
which is not materially different from the disclosures in the Prospectus as of
specific dates), the Company does not own, directly or indirectly, any capital
stock or other equity securities of any other corporation or any ownership
interest in any partnership, joint venture or other association.
(h) Except as disclosed in the Prospectus, the Registration
Statement or the documents incorporated therein by reference, there are no
outstanding (i) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or any of its subsidiaries, (ii) warrants, rights or options to
subscribe for or purchase from the Company or any of its subsidiaries any such
capital stock or any such convertible or exchangeable securities or obligations
(other than pursuant to the Company's stock benefit plans) or (iii) obligations
of the Company or any of its subsidiaries to issue any shares of capital stock,
any such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
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(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus or otherwise disclosed
therein, and prior to the Closing Date and Option Closing Date (as such terms
are hereinafter defined), (i) neither the Company nor any of its subsidiaries
has incurred any liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business, that are material
to the Company and its subsidiaries, (ii) the Company has not purchased any of
its outstanding capital stock or declared, paid or otherwise made any dividend
or distribution of any kind on its capital stock, (iii) there has not been any
change in the capital stock, long-term debt or short-term debt of the Company or
any of its subsidiaries, and (iv) there has not been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the financial position, results of operations or business of the
Company and its subsidiaries, in each case other than as disclosed in or
contemplated by the Prospectus.
(j) 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 Act with respect to any
securities of the Company owned or to be owned by such person or, requiring the
Company to include such securities in the securities registered pursuant to the
Registration Statement (or any such right has been effectively waived) or
requiring the registration of any securities pursuant to any other registration
statement filed by the Company under the Act. Neither the filing of the
Registration Statement nor the offering or sale of Shares as contemplated by
this Agreement gives any security holder of the Company any rights for or
relating to the registration of any shares of Common Stock or any other capital
stock of the Company, except such that have been satisfied or waived.
(k) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or passage of time or both would be, in violation of
its Certificate of Incorporation or Bylaws (or comparable charter documents) or
in default under any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which the Company or any of its subsidiaries
is a party or to which any of their respective properties or assets are subject.
(l) The Company and its subsidiaries have good and marketable
title in fee simple to all real property, if any, and good title to all personal
property owned by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, except such as
are disclosed in the Prospectus or such as would not have a material adverse
effect on the financial position, results of operations or business of the
Company and its subsidiaries taken as a whole and do not interfere with the use
made or proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company or any of its subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as are disclosed in the Prospectus or
are not material and do not interfere with the use made or proposed to be made
of such property and buildings by the Company or any subsidiary.
(m) The Company does not require any consent, approval,
authorization, order or declaration of or from, or registration, qualification
or filing with, any court or governmental agency or body in connection with the
sale of the Shares or the
5
consummation of the transactions contemplated by this Agreement, except the
registration of the Shares under the Act (which, if the Registration Statement
is not effective as of the time of execution hereof, shall be obtained as
provided in this Agreement) and such as may be required by the New York Stock
Exchange or under state securities or blue sky laws in connection with the
offer, sale and distribution of the Shares by the Underwriters.
(n) Other than as disclosed in the Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or investigation
(including without limitation, any bank regulatory proceeding) pending or, to
the Company's knowledge, threatened in which the Company or any of its
subsidiaries is a party or of which any of their respective properties or assets
are the subject which, if determined adversely to the Company or any subsidiary,
would individually or in the aggregate have a material adverse effect on the
financial position, results of operations or business of the Company and its
subsidiaries taken as a whole. Neither the Company nor any subsidiary is in
violation of, or in default with respect to, any law, statute, rule, regulation,
order, judgment or decree, except as described in the Prospectus or such as do
not and will not individually or in the aggregate have a material adverse effect
on the financial position, results of operations or business of the Company and
its subsidiaries taken as a whole, and neither the Company nor any subsidiary is
required to take any action in order to avoid any such violation or default.
(o) PricewaterhouseCoopers LLP, which has certified certain
financial statements of the Company and its consolidated subsidiaries included
in the Registration Statement and the Prospectus, are independent public
accountants as required by the Act, the Exchange Act and the respective rules
and regulations of the Commission thereunder.
(p) The consolidated financial statements and schedules
(including the related notes) of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement, the
Prospectus and/or any Preliminary Prospectus were prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved and fairly present the financial position and results of
operations of the Company and its subsidiaries, on a consolidated basis, at the
dates and for the periods presented. The selected consolidated financial data
and operating and statistical information set forth under the captions
"Summary," "Selected Consolidated Financial Data," "Recent Operating Results,"
"Use of Proceeds," "Pro Forma Consolidated Statement of Financial Condition" and
"Capitalization," in the Prospectus fairly present, on the basis stated in the
Prospectus, the information included therein, and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement. The supporting notes and schedules included in the
Registration Statement, the Prospectus and/or any Preliminary Prospectus fairly
state in all material respects the information required to be stated therein in
relation to the financial statements taken as a whole. The unaudited interim
consolidated financial statements included or incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Rule 10-01 of the Regulation S-X under the
Act.
6
(q) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due execution by the Representatives,
constitutes the valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws relating to or affecting the enforcement of creditors' rights generally and
to general equitable principles and except as the enforceability of rights to
indemnity and contribution under this Agreement may be limited under applicable
securities laws or the public policy underlying such laws.
(r) The sale of the Shares and the performance of this
Agreement and the consummation of the transactions herein contemplated will not
(with or without the giving of notice or the passage of time or both) (i)
conflict with or violate any term or provision of the Certificate of
Incorporation or Bylaws or comparable charter documents of the Company or any
subsidiary, (ii) 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, lease or other agreement or instrument to which the
Company or any subsidiary is a party or to which any of their respective
properties or assets is subject, (iii) conflict with or violate any law,
statute, rule or regulation or any order, judgment or decree of any court or
governmental agency or body having jurisdiction over the Company or any
subsidiary or any of their respective properties or assets or (iv) result in a
breach, termination or lapse of the corporate power and authority of the Company
or any subsidiary to own or lease and operate their respective assets and
properties and conduct their respective business as described in the Prospectus.
(s) When the Shares to be sold by the Company hereunder have
been duly delivered against payment therefor as contemplated by this Agreement,
the Shares will be validly issued, fully paid and nonassessable, and the holders
thereof will not be subject to personal liability solely by reason of being such
holders. The Global Securities representing the Shares are in proper legal form
under, and conform in all respects to the requirements of, the Delaware General
Corporation Law, the National Association of Securities Dealers and the New York
Stock Exchange.
(t) The Company has not distributed and will not distribute
any offering material in connection with the offering and sale of the Shares
other than the Registration Statement, a Preliminary Prospectus, the Prospectus
and other material, if any, permitted by the Act.
(u) Neither the Company nor any of its officers, directors or
affiliates has (i) taken, directly or indirectly, any action designed to cause
or result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or (ii) since the
filing of the Registration Statement (A) sold, bid for, purchased or paid anyone
any compensation for soliciting purchases of, the Shares or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company.
7
(v) The operations of the Company and its subsidiaries with
respect to any real property currently leased or owned or by any means
controlled by the Company or any subsidiary (the "Real Property") are in
compliance in all material respects with all federal, state, and local laws,
ordinances, rules, and regulations relating to occupational health and safety
and the environment (collectively, "Laws"), and the Company and its subsidiaries
have not violated any Laws in a way which would have a material adverse effect
on the financial position, results of operations or business of the Company and
its subsidiaries taken as a whole. Except as disclosed in the Prospectus, there
is no pending or, to the Company's knowledge, threatened material claim,
litigation or administrative agency proceeding, nor has the Company or any
subsidiary received any written or oral notice from any governmental entity or
third party, that: (i) alleges a violation of any Laws by the Company or any
subsidiary or (ii) alleges the Company or any subsidiary is a liable party under
the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601 et seq. or any state superfund law.
(w) Neither the Company nor any subsidiary owns or has the
right to use patents, patent applications, trademarks, trademark applications,
trade names, service marks, copyrights, franchises, trade secrets, proprietary
or other confidential information and intangible properties and assets
(collectively, "Intangibles"), the loss of any of which would have a material
adverse effect on the financial position, results of operations or business of
the Company and its subsidiaries taken as a whole; and, to the knowledge of the
Company, neither the Company nor any subsidiary has infringed or is infringing,
and neither the Company nor any subsidiary has received notice of infringement
with respect to, asserted Intangibles of others.
(x) Each of the Company and its subsidiaries makes and keeps
accurate books and records reflecting its assets and maintains internal
accounting controls which provide reasonable assurance that (i) transactions are
executed in accordance with management's authorization, (ii) transactions are
recorded as necessary to permit preparation of the Company's consolidated
financial statements in accordance with generally accepted accounting principles
and to maintain accountability for the assets of the Company, (iii) access to
the assets of the Company and each of its subsidiaries is permitted only in
accordance with management's authorization, and (iv) the recorded accountability
for assets of the Company and each of its subsidiaries is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
(y) The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed by them and
have paid all taxes shown as due on such returns as well as all other taxes,
assessments and governmental charges that are due and payable; and no material
deficiency with respect to any such return has been assessed or proposed.
(z) Except for such plans that are expressly disclosed in the
Prospectus, the Registration Statement and the documents incorporated by
reference therein, the Company and its subsidiaries do not maintain, contribute
to or have any material liability with respect to any employee benefit plan,
profit sharing plan, employee pension benefit plan, employee welfare benefit
plan, equity-based plan or deferred compensation plan or arrangement ("Plans")
that are subject to the provisions of the Employee Retirement Income Security
Act of
8
1974, as amended, or the rules and regulations thereunder ("ERISA"). All Plans
are in compliance in all material respects with all applicable laws, including
but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the
"Code"), and have been operated and administered in all material respects in
accordance with their terms. No Plan is a defined benefit plan or multi-employer
plan. The Company does not provide retiree life and/or retiree health benefits
or coverage for any employee or any beneficiary of any employee after such
employee's termination of employment, except as required by Section 4980B of the
Code or under a Plan which is intended to be "qualified" under Section 401(a) of
the Code. No material liability has been, or could reasonably be expected to be,
incurred under Title IV of ERISA or Section 412 of the Code by any entity
required to be aggregated with the Company or any of the subsidiaries pursuant
to Section 4001(b) of ERISA and/or Section 414(b) or (c) of the Code (and the
regulations promulgated thereunder) with respect to any "employee pension
benefit plan" which is not a Plan. As used in this subsection, the terms
"defined benefit plan," "employee benefit plan," "employee pension benefit
plan," "employee welfare benefit plan" and "multi-employer plan" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
(aa) No material labor dispute exists with the Company's or
any subsidiary's employees, and no such labor dispute is threatened. The Company
has no knowledge of any existing or threatened labor disturbance by the
employees of any of its principal agents, suppliers, contractors or customers
that would have a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries taken as a whole.
(bb) The Company and its subsidiaries have received all
permits, licenses, franchises, authorizations, registrations, qualifications and
approvals (collectively, "Permits") of governmental or regulatory authorities
(including, without limitation, state or federal bank regulatory authorities) as
may be required of them to own their properties and conduct their businesses in
the manner described in the Prospectus, subject to such qualifications as may be
set forth in the Prospectus; and the Company and its subsidiaries have fulfilled
and performed all of their material obligations with respect to such Permits,
and no event has occurred which allows or, after notice or lapse of time or
both, would allow revocation or termination thereof or result in any other
material impairment of the rights of the holder of any such Permit, subject in
each case to such qualifications as may be set forth in the Prospectus; and,
except as described in the Prospectus, such Permits contain no restrictions that
materially affect the ability of the Company and its subsidiaries to conduct
their businesses and no state or federal bank regulatory agency or body has
issued any order or decree impairing, restricting or prohibiting the payment of
dividends by any of its subsidiaries to the Company.
(cc) The Company and each of its subsidiaries has filed, or
has had filed on its behalf, on a timely basis, all materials, reports,
documents and information, including but not limited to annual reports, call
reports and reports of examination with each applicable bank regulatory
authority, board or agency, which are required to be filed by it, except where
the failure to have timely filed such materials, reports, documents and
information would not have a material adverse effect on the financial position,
results of operations or business of the Company and its subsidiaries taken as a
whole.
9
(dd) Neither the Company nor any subsidiary is an "investment
company" or a company "controlled" by an investment company as such terms are
defined in Sections 3(a) and 2(a)(9), respectively, of the Investment Company
Act of 1940, as amended (the "Investment Company Act"), and, if the Company or
any subsidiary conducts its business as set forth in the Registration Statement
and the Prospectus, will not become an "investment company" and will not be
required to register under the Investment Company Act.
(ee) Community Bank, N.A. is a member in good standing of
the Federal Reserve System and its deposits are insured by the Federal
Deposit Insurance Corporation up to the legal limits.
(ff) The Company and each subsidiary have in place and
effective such policies of insurance, with limits of liability in such amounts,
as are normal and prudent in the ordinary scope of business similar to that of
the Company and such subsidiary in the respective jurisdiction in which they
conduct business.
2. Purchase and Sale of Shares.
(a) Subject to the terms and conditions herein set forth, the
Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of ______________ Dollars and ______________ Cents ($_____) per share (the
"Per Share Price"), the number of Firm Shares (to be adjusted by the
Representatives so as to eliminate fractional shares) determined by multiplying
the aggregate number of Firm Shares to be sold by the Company as set forth in
the first paragraph of this Agreement by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto, and the
denominator of which is the aggregate number of Firm Shares to be purchased by
the several Underwriters hereunder.
(b) The Company hereby grants to the Underwriters the right to
purchase at their election in whole or in part from time to time up to 180,000
Optional Shares, at the Per Share Price, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised by written notice from the Representatives to
the Company, given at any time (but not more than once) within a period of 30
calendar days after the date of this Agreement and setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representatives but in no event
earlier than the First Time of Delivery (as hereinafter defined) or, unless the
Representatives otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice. In the event the Underwriters elect
to purchase all or a portion of the Optional Shares, the Company agrees to
furnish or cause to be furnished to the Representatives the certificates,
letters and opinions, and to satisfy all conditions, set forth in Section 7
hereof at the Subsequent Time of Delivery (as hereinafter defined).
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(c) In making this Agreement, each Underwriter is contracting
severally, and not jointly, and except as provided in Sections 2(b) and 9
hereof, the agreement of each Underwriter is to purchase only that number of
shares specified with respect to that Underwriter in Schedule I hereto. No
Underwriter shall be under any obligation to purchase any Optional Shares prior
to an exercise of the option with respect to such Shares granted pursuant to
Section 2(b) hereof.
4. Offering by the Underwriters. Upon the authorization by the
Representatives of the release of the Shares, the several Underwriters propose
to offer the Shares for sale upon the terms and conditions disclosed in the
Prospectus.
4. Delivery of Shares; Closing. The Firm Shares shall be issued in
the form of one or more fully registered global securities (the "Global
Securities") in book-entry form in such denomination and registered in the name
of the nominee of The Depositary Trust Company ("DTC") or in such names as the
Representatives may request upon at least 48 hours' prior notice to the Company,
and shall be delivered by or on behalf of the Company to the Representatives for
the account of such Underwriter, against payment by such Underwriter on its
behalf of the purchase price therefor by wire transfer of immediately available
funds to such accounts as the Company shall designate in writing. The closing of
the sale and purchase of the Firm Shares shall be held at the offices of Xxxxxxx
Spidi & Xxxxx, PC, 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, XX
00000. The time and date of such delivery and payment shall be, with respect to
the Firm Shares, at 9:00 a.m., Washington, DC time, on the third (3rd) full
business day after this Agreement is executed or at such other time and date as
the Representatives and the Company may agree upon in writing, and, with respect
to the Optional Shares, at 9:00 a.m., Eastern time, on the date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase all or part of such Optional Shares, or at
such other time and date as the Representatives and the Company may agree upon
in writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery," such time and date for delivery of any Optional
Shares, if not the First Time of Delivery, is herein called a "Subsequent Time
of Delivery," and each such time and date for delivery is herein called a "Time
of Delivery." The Company shall make the Global Securities representing the Firm
Shares available for examination by the Representatives and counsel for the
Underwriters not later than 9:30 a.m. Eastern time on the business day prior to
each Time of Delivery at the office of Xxxxxxx Spidi & Xxxxx, PC, 0000 Xxx Xxxx
Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, XX 00000 or at such other location
specified by the Representatives or counsel for the Underwriters in writing at
least 48 hours prior to such Time of Delivery.
5. Covenants of the Company. The Company covenants and agrees with
each of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective prior to the execution and delivery of
this Agreement, to become effective. If the Registration Statement has been
declared effective prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to by the
11
Representatives, subparagraph (4)) of Rule 424(b) within the time period
required under Rule 424(b) under the Act. The Company will advise the
Representatives promptly of any such filing pursuant to Rule 424(b).
(b) The Company will not file with the Commission the
Prospectus or the amendment referred to in Section 1(a) hereof, any amendment or
supplement to the Prospectus or any amendment to the Registration Statement
unless the Representatives have received a reasonable period of time to review
any such proposed amendment or supplement and consented to the filing thereof
and will use its best efforts to cause any such amendment to the Registration
Statement to be declared effective as promptly as possible. Upon the reasonable
request of the Representatives or counsel for the Underwriters, the Company will
promptly prepare and file with the Commission, in accordance with the rules and
regulations of the Commission, any amendments to the Registration Statement or
amendments or supplements to the Prospectus that may be necessary or advisable
in connection with the distribution of the Shares by the several Underwriters
and will use its best efforts to cause any such amendment to the Registration
Statement to be declared effective as promptly as possible. If required, the
Company will file any amendment or supplement to the Prospectus with the
Commission in the manner and within the time period required by Rule 424(b)
under the Act. The Company will advise the Representatives, promptly after
receiving notice thereof, of the time when the Registration Statement or any
amendment thereto has been filed or declared effective or the Prospectus or any
amendment or supplement thereto has been filed and will provide evidence to the
Representatives of each such filing or effectiveness.
(c) The Company will advise the Representatives promptly after
receiving notice or obtaining knowledge of (i) when any post-effective amendment
to the Registration Statement is filed with the Commission, (ii) the receipt of
any comments from the Commission concerning the Registration Statement, (iii)
when any post-effective amendment to the Registration Statement becomes
effective, or when any supplement to the Prospectus or any amended Prospectus
has been filed, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any part thereof or any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, (v) the suspension of the qualification
of the Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (vi) any request made by
the Commission or any securities authority of any other jurisdiction for
amending the Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use its best efforts
to prevent the issuance of any such stop order or suspension and, if any such
stop order or suspension is issued, to obtain the withdrawal thereof as promptly
as possible.
(d) If the delivery of a prospectus relating to the Shares is
required under the Act at any time prior to the expiration of nine months after
the date of the Prospectus and if at such time any events have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any reason it is necessary during such
same period to amend or supplement the Prospectus, the Company will promptly
notify the
12
Representatives and upon their request (but at the Company's expense) prepare
and file with the Commission an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance and will furnish
without charge to each Underwriter and to any dealer in securities as many
copies of such amended or supplemented Prospectus as the Representatives may
from time to time reasonably request.
(e) The Company promptly from time to time will take such
action as the Representatives may reasonably request to qualify the Shares for
offering and sale under the securities or blue sky laws of such jurisdictions as
the Representatives may request and will continue such qualifications in effect
for as long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or as a dealer in securities or to file a
general consent to service of process in any jurisdiction. The Company will file
such statements and reports as may be required by the laws of each jurisdiction
in which the Shares have been qualified as above provided.
(f) Upon request, the Company will promptly provide each of
the Representatives, without charge, (i) two manually executed copies of the
Registration Statement as originally filed with the Commission and of each
amendment thereto, including all exhibits and all documents or information
incorporated by reference therein, (ii) for each other Underwriter, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto, without exhibits but including all documents or information
incorporated by reference therein and (iii) so long as a prospectus relating to
the Shares is required to be delivered under the Act, as many copies of each
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
as the Representatives may reasonably request.
(g) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally available
to its security holders an earnings statement of the Company and its
subsidiaries, if any, covering a period of at least 12 months beginning after
the effective date of the Registration Statement (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations
thereunder. "Availability Date" means the forty-fifth (45th) day after the end
of the fourth fiscal quarter following the fiscal quarter in which the
Registration Statement went effective, except that if such fourth fiscal quarter
is the last quarter of the Company's fiscal year, "Availability Date" means the
ninetieth (90th) day after the end of such fourth fiscal quarter.
(h) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
the Company will not, and will cause its officers and directors not to, without
the prior written consent of the Representatives, directly or indirectly (i)
offer, sell, contract to sell or otherwise dispose of, any shares of Common
Stock or securities convertible into or exercisable or exchangeable for shares
of Common Stock or (ii) enter into any swap or other agreement or any
transaction that transfers, in whole or in part, the economic consequences of
ownership of shares of Common Stock whether any such swap or other agreement is
to be settled by delivery of shares of Common Stock, other securities, cash or
otherwise; except for the sale of the Shares hereunder, except for the issuance
of Common Stock upon the exercise of stock options or warrants or the conversion
of
13
convertible securities outstanding on the date of this Agreement or to the
extent that such stock options, warrants and convertible securities are
disclosed in the Prospectus and except for the grant to employees of stock
options to purchase Common Stock which are not exercisable within such 180 days.
(i) During the period of three years after the effective date
of the Registration Statement, the Company will furnish to the Representatives
and, upon request, to each of the other Underwriters, without charge, (i) copies
of all reports or other communications (financial or other) furnished to
shareholders and (ii) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange.
(j) Prior to the termination of the underwriting syndicate
contemplated by this Agreement, neither the Company nor any of its officers,
directors or affiliates will (i) take, directly or indirectly, any action
designed to cause or to result in, or that might reasonably be expected to cause
or result in, the stabilization or manipulation of the price of any security of
the Company or (ii) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of, the Shares.
(k) In case of any event, at any time within the period during
which a prospectus is required to be delivered under the Act, as a result of
which any Preliminary Prospectus or the Prospectus, as then amended or
supplemented, would contain an untrue statement of a material fact, or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, or, if it
is necessary at any time to amend any Preliminary Prospectus or the Prospectus
to comply with the Act or any applicable securities or blue sky laws, the
Company promptly will prepare and file with the Commission, and any applicable
state securities commission, an amendment, supplement or document that will
correct such statement or omission or effect such compliance and will furnish to
the several Underwriters such number of copies of such amendment(s),
supplement(s) or document(s) as the Representatives may reasonably request. For
purposes of this subsection (k), the Company will provide such information to
the Representatives, the Underwriters' counsel and counsel to the Company as
shall be necessary to enable such persons to consult with the Company with
respect to the need to amend or supplement the Registration Statement, any
Preliminary Prospectus or the Prospectus or file any document, and shall furnish
to the Representatives and the Underwriters' counsel such further information as
each may from time to time reasonably request.
(l) The Company will use its best efforts to obtain, and
thereafter maintain, the qualification or listing of the shares of Common Stock
(including, without limitation, the Shares) on the New York Stock Exchange.
(m) At the request of the Representatives, but not without the
Representatives' agreement, the Company shall file a Rule 462(b) registration
statement with the Commission in compliance with Rule 462(b) of the Act and the
Company shall sell any and all such shares registered thereunder to the
Underwriters at the Per Share Price and otherwise in accordance with the terms
of this Agreement.
14
6. Expenses and Fees.
(a) The Company will pay all costs and expenses incident to
the performance of the obligations of the Company under this Agreement, whether
or not the transactions contemplated hereby are consummated or this Agreement is
terminated pursuant to Section 10 hereof, including, without limitation, all
costs and expenses incident to (i) the printing of and mailing expenses
associated with the Registration Statement, any Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto, this Agreement, the
Agreement among Underwriters, the Underwriters' Questionnaire submitted to each
of the Underwriters by the Representatives in connection herewith, the power of
attorney executed by each of the Underwriters in favor of Xxxxxx Xxxxxxxxxx
Xxxxx LLC in connection herewith, the Selected Dealer Agreement and related
documents (collectively, the "Underwriting Documents") and the preliminary Blue
Sky memorandum relating to the offering prepared by Xxxxxxx Spidi & Xxxxx, PC,
counsel to the Underwriters (collectively with any supplement thereto, the
"Preliminary Blue Sky Memorandum"); (ii) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation
and, if applicable, filing of the Registration Statement (including all
amendments thereto), any Preliminary Prospectus, the Prospectus and any
amendments and supplements thereto, the Underwriting Documents and the
Preliminary Blue Sky Memorandum; (iii) the delivery of copies of the foregoing
documents to the Underwriters; (iv) the filing fees of the Commission and the
New York Stock Exchange relating to the Shares; (v) the preparation, issuance
and delivery to the Underwriters of any certificates evidencing the Shares,
including transfer agent's and registrar's fees; (vi) the qualification of the
Shares for offering and sale under state securities and blue sky laws, including
filing fees and fees and disbursements of counsel for the Underwriters (and
local counsel therefor) relating thereto; (vii) any listing of the Shares on the
New York Stock Exchange; (viii) any expenses for travel, lodging and meals
incurred by the Company and any of its officers, directors and employees in
connection with any meetings with prospective investors in the Shares; and (ix)
all other costs and expenses reasonably incident to the performance of the
Company's obligations hereunder that are not otherwise specifically provided for
in this Section 6.
(b) The Representatives and the Underwriters will pay their
own expenses, including the fees of their counsel (except as provided in Section
6(a)(vi) hereof), public advertisement of the offering and their own marketing
and due diligence expenses.
7. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy of
the representations and warranties of the Company contained herein as of the
date hereof and as of such Time of Delivery, to the accuracy of the statements
of the Company's officers made pursuant to the provisions hereof, to the
performance by the Company of its covenants and agreements hereunder, and to the
following additional conditions precedent:
(a) If the registration statement as amended to date has not
become effective prior to the execution of this Agreement, such registration
statement shall have been declared effective not later than 11:00 a.m., Eastern
time, on the date of this Agreement or such
15
later date and/or time as shall have been consented to by the Representatives in
writing. If required, the Prospectus and any amendment or supplement thereto
shall have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing and in accordance with Section
5(a) of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted, threatened or, to the
knowledge of the Company and the Representatives, contemplated 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) The Representatives shall each have received a copy of an
executed lock-up agreement from the Company and each of the Company's executive
officers and directors and certain shareholders of Common Stock, in the form
attached hereto as Exhibit A.
(c) The Representatives shall each have received an opinion,
dated such Time of Delivery, of Bond Xxxxxxxxx & King, special counsel for the
Company, in form and substance satisfactory to the Representatives and their
respective counsel, to the effect that:
(i) The Company is validly existing as a
corporation in good standing under the laws of the State of Delaware and has the
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement and the Prospectus and to
enter into this Agreement and perform its obligations hereunder. The Company is
duly qualified to transact business as a foreign corporation in each
jurisdiction in which it owns or leases property, or conducts any business, so
as to require such qualification, except where the failure to so qualify would
not have a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries taken as a whole. The
Company is a registered bank holding company under the Bank Holding Company Act
of 1956, as amended.
(ii) Each of the Company's subsidiaries is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to own or lease its
properties and conduct its business as described in the Registration Statement
and the Prospectus. Each subsidiary is duly qualified to transact business as a
foreign corporation in each jurisdiction in which it owns or leases property, or
conducts any business, so as to require such qualification, except where the
failure to so qualify would not have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole.
(iii) All of the issued shares of capital stock of
the Company, including the Shares to be sold by the Company pursuant hereto when
delivered against payment therefor as contemplated hereby, have been duly
authorized and validly issued, are fully paid and nonassessable and conform to
the description of the Common Stock contained in the Prospectus. None of the
issued shares of Common Stock of the Company or capital stock of the Company's
direct or indirect subsidiaries has been issued or is owned or held in violation
of any statutory (or any other) preemptive rights of shareholders, and no person
or entity (including any holder of
16
outstanding shares of Common Stock of the Company or capital stock of its direct
or indirect subsidiaries) has any statutory (or any other) preemptive or other
rights to subscribe for any of the Shares.
(iv) All of the issued shares of capital stock of
the Company's direct or indirect subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable, except to the extent such
shares may be deemed assessable under 12 U.S.C. Section 55, and are owned
beneficially by the Company or its subsidiaries, free and clear of all liens,
security interests, pledges, charges, encumbrances, shareholders' agreements,
voting agreements, proxies, voting trusts, defects, equities or claims of any
nature whatsoever (collectively, "Encumbrances"), including, without limitation,
any Encumbrance arising or resulting from any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement of or entered into by the
Company or its direct or indirect subsidiaries.
(v) Except as disclosed in the Prospectus, the
Registration Statement and the documents incorporated by reference therein,
there are no outstanding (A) securities or obligations of the Company or any of
its subsidiaries convertible into or exchangeable for any capital stock of the
Company or any subsidiary, (B) warrants, rights or options to subscribe for or
purchase from the Company or any of its subsidiaries any such capital stock or
any such convertible or exchangeable securities or obligations, other than
pursuant to the Company's stock benefit plans, or (C) obligations of the Company
or any of its subsidiaries to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(vi) 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 Act with
respect to any securities of the Company owned or to be owned by such person or,
requiring the Company to include such securities in the securities registered
pursuant to the Registration Statement (or any such right has been effectively
waived) or requiring the registration of any securities pursuant to any other
registration statement filed by the Company under the Act.
(vii) The sale of the Shares being sold at such Time
of Delivery and the performance of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or violate any provision
of the articles of incorporation or bylaws or comparable charter documents of
the Company or any of its subsidiaries, in each case as amended to date or any
existing law, statute, rule or regulation, or in any material respect, conflict
with, or (with or without the giving of notice or the passage of time or both)
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, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or to which any of their respective properties or
assets is subject, or, conflict with or violate any order, judgment or decree
known to such counsel, of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets.
17
(viii) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with, any court
or governmental agency or body is required for the sale of the Shares or the
consummation of the transactions contemplated by this Agreement, except such as
have been or will have been obtained and are or will be in effect, and except
the registration of the Shares under the Act, and such as may be required by the
New York Stock Exchange or under state securities or blue sky laws in connection
with the offer, sale and distribution of the Shares by the Underwriters.
(ix) Other than as disclosed in or contemplated by
the Prospectus, there is no litigation, arbitration, claim, proceeding (formal
or informal) or investigation pending or threatened, in which the Company or any
of its subsidiaries is a party or of which any of their respective properties or
assets is the subject which, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a material adverse
effect on the financial position, results of operations or business of the
Company and its subsidiaries taken as a whole.
(x) This Agreement has been duly authorized,
executed and delivered by the Company and, assuming due execution by the
Representatives of the Underwriters, constitutes the valid and binding agreement
of the Company, enforceable against the Company, in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization
and moratorium laws and other laws relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles and except as
the enforceability of rights to indemnity and contribution under this Agreement
may be limited under applicable securities laws or the public policy underlying
such laws.
(xi) Neither the Company nor any of its subsidiaries
is an "investment company" or a company "controlled" by an investment company as
such terms are defined in Sections 3(a) and 2(a)(9), respectively, of the
Investment Company Act.
(xii) The Registration Statement and the Prospectus
and each amendment or supplement thereto (other than the financial statements,
the notes and schedules thereto and other financial data included therein, to
which such counsel need express no opinion), as of their respective effective or
issue dates, complied as to form in all material respects with the requirements
of the Act and the respective rules and regulations thereunder.
(xiii) The Registration Statement was declared
effective under the Act as of the date and time specified in such opinion and no
stop order suspending the effectiveness of the Registration Statement has been
issued under the Act and no proceedings therefor have been initiated or
threatened by the Commission.
Such counsel shall also state that they have participated in the
preparation of the Registration Statement and the Prospectus and in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and representatives of and
counsel to the Underwriters at which the contents of the Registration Statement,
the Prospectus and related matters were discussed and, although such counsel has
not passed upon or assumed any responsibility for the accuracy, completeness or
18
fairness of the statements contained in the Registration Statement or the
Prospectus, and although such counsel has not undertaken to verify independently
the accuracy or completeness of the statements in the Registration Statement or
the Prospectus, nothing has come to such counsel's attention to lead them to
believe that the Registration Statement, or any further amendment thereto made
prior to such Time of Delivery, on its effective date and as of such Time of
Delivery, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, not misleading, or that the
Prospectus, or any amendment or supplement thereto made prior to such Time of
Delivery, as of its issue date and as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements, the notes and
schedules thereto and other financial data contained in the Registration
Statement, any amendment thereto, or the Prospectus, or any amendment or
supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of officers of
the Company, public officials and letters from officials of the New York Stock
Exchange. Copies of such certificates of officers of the Company and other
opinions shall be addressed and furnished to the Underwriters and furnished to
counsel for the Underwriters.
(d) Xxxxxxx Spidi & Xxxxx, counsel for the Underwriters, shall
have furnished to each of the Representatives such opinion or opinions, dated
such Time of Delivery, with respect to such matters as the Representatives may
reasonably request, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(e) The Representatives shall each have received from
PricewaterhouseCoopers LLP, in form and substance satisfactory to the
Representatives, letters dated as of the date hereof, the date of delivery of
the Firm Shares and the date(s) of delivery of any Optional Shares, 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
Prospectus; provided that the letter dated as of the date of delivery of the
Firm Shares shall use a "cut-off date" not earlier than the date hereof.
(f) Since the date of the latest audited financial statements
included in the Prospectus, neither the Company nor any of the subsidiaries
shall have sustained any material adverse change, or any development involving a
prospective material adverse change (including, without limitation, a change in
management or control of the Company), in or affecting the position (financial
or otherwise), results of operations, net worth or business prospects of the
Company and its subsidiaries, otherwise than as disclosed in or contemplated by
the Prospectus, the effect of which, in either such case, in the
Representatives' reasonable judgment makes it impracticable or inadvisable to
proceed with the purchase, sale and delivery of the Shares being delivered at
such Time of Delivery as contemplated by the Registration Statement, as amended
as of the date hereof.
19
(g) Subsequent to the date hereof, there shall not have
occurred any of the following: (i) any suspension or limitation in trading in
securities generally on any national securities exchange or any setting of
minimum prices for trading on any national securities exchange, or in the Common
Stock of the Company by the Commission, any national securities exchange or the
Nasdaq Stock Market; (ii) a moratorium on commercial banking activities in New
York declared by either federal or state authorities; or (iii) any outbreak or
escalation of hostilities involving the United States, declaration by the United
States of a national emergency or war or any other national or international
calamity or emergency if the effect of any such event specified in this clause
(iii) in the Representatives' reasonable judgment makes it impracticable or
inadvisable to proceed with the purchase, sale and delivery of the Shares being
delivered at such Time of Delivery as contemplated by the Registration
Statement, as amended as of the date hereof.
(h) The Company shall have furnished to the Representatives at
such Time of Delivery certificates of the chief executive officer or an
executive vice president and the chief financial officer of the Company
satisfactory to the Representatives, as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of Delivery with the
same effect as if made at such Time of Delivery, as to the performance by the
Company of all of its respective obligations hereunder to be performed at or
prior to such Time of Delivery, and as to such other matters as the
Representatives may reasonably request, and the Company shall have furnished or
caused to be furnished certificates of such officers as to such matters as the
Representatives may reasonably request.
(i) The representations and warranties of the Company in this
Agreement and in the certificates delivered by the Company pursuant to this
Agreement shall be true and correct in all material respects when made and on
and as of each Time of Delivery as if made at such time, and the Company shall
have performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by the Company
at or before such Time of Delivery.
(j) The Shares shall have been approved for listing on the New
York Stock Exchange.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement made by the Company in Section 1 of this Agreement;
(ii) any untrue statement or alleged untrue statement of any material fact
contained in (A) the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or (B) any application or other document, or amendment or supplement thereto,
executed by the Company or based upon written information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify the Shares
under the securities or blue sky laws thereof or filed with the Commission or
any securities
20
association or securities exchange (each an "Application"); or (iii) the
omission of or alleged omission to state in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application of a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or any Application in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein (which
information is solely as set forth in Section 1(c) hereof). The Company will
not, without the prior written consent of the Representatives of the
Underwriters, which shall not be unreasonably withheld, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding (or related cause of action or portion thereof) in respect of
which indemnification may be sought hereunder (whether or not any Underwriter is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of each Underwriter from
all liability arising out of such claim, action, suit or proceeding (or related
cause of action or portion thereof).
(b) The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls the Underwriters within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act ("Underwriter Entities"), against any and all losses, claims, damages or
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim): caused by the failure of any Participant to pay for and accept
delivery of the Shares which, immediately following the effectiveness of the
Registration Statement, were subject to a properly confirmed agreement to
purchase; provided that the Company shall not be responsible under this
subsection 8(b) for any losses, claims, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to have resulted from
the bad faith or gross negligence of the Underwriter Entities.
(c) Each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the
21
Company by such Underwriter through the Representatives expressly for use
therein (which information is solely as set forth in Section 1(c) hereof); and
will reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such loss,
claim, damage, liability or action.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under such subsection
(a), (b) or (c). In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party); provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party and such
indemnified party shall have the right to select separate counsel to defend such
action on behalf of such indemnified party. After such notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. Nothing in this
Section 8(d) shall preclude an indemnified party from participating at its own
expense in the defense of any such action so assumed by the indemnifying party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the
22
Underwriters on the other hand shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault 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 Company on the one hand or the Underwriters on the
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include 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 subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
employee of the Underwriters and to each person, if any, who controls any
Underwriter within the meaning of the Act or the Exchange Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of the
Act or the Exchange Act.
9. Default of Underwriters.
(a) If any Underwriter defaults in its obligation to purchase
Shares at a Time of Delivery, the Representatives may in their discretion
arrange for the Underwriters or another party or other parties to purchase such
Shares on the terms contained herein within thirty-six (36) hours after such
default by any Underwriter. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Shares, the Representatives shall have the right to
postpone a Time of Delivery for a period of not more than seven (7) days in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus that in the Representatives' opinion
may thereby be
23
made necessary. The cost of preparing, printing and filing any such amendments
shall be paid for by the Underwriters. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by the
Representatives as provided in subsection (a) above, if any, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh
(1/11) of the aggregate number of Shares to be purchased at such Time of
Delivery, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made.
10. Termination.
(a) This Agreement may be terminated in the sole discretion of
the Representatives by notice to the Company given prior to the First Time of
Delivery or any Subsequent Time of Delivery, respectively, in the event that (i)
any condition to the obligations of the Underwriters set forth in Section 7
hereof has not been satisfied, or (ii) the Company shall have failed, refused or
been unable to deliver the Firm Shares or the Company shall have failed, refused
or been unable to perform all obligations and satisfy all conditions on its part
to be performed or satisfied hereunder at or prior to such Time of Delivery, in
either case other than by reason of a default by any of the Underwriters. If
this Agreement is terminated pursuant to this Section 10(a), the Company will
reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including counsel fees and disbursements) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares. Any termination pursuant to this Section 10(a) shall be without
liability on the part of any Underwriter to the Company or on the part of the
Company to any Underwriter (except for expenses to be paid by the Company
pursuant to Section 6 hereof or reimbursed by the Company pursuant to this
Section 10(a) and except as to indemnification and contribution to the extent
provided in Section 8 hereof.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters as provided
in Section 9(a), the aggregate number of such Shares which remains unpurchased
exceeds one-eleventh (1/11) of the aggregate number of Shares to be purchased at
such Time of Delivery, then this Agreement (or, with respect to a Subsequent
Time of Delivery, the obligations of the Underwriters to purchase and of the
Company to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
24
11. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Company, its officers
and the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, 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 referred to in Section 8(f) or the Company, or any officer or director or
controlling person of the Company referred to in Section 8(f), and shall survive
delivery of and payment for the Shares. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
12. Notices. All communications hereunder shall be in writing and,
if sent to any of the Underwriters, shall be sufficient in all respects if
mailed, delivered or telegraphed and confirmed in writing to the Representatives
c/o Janney Xxxxxxxxxx Xxxxx LLC, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxx, Managing Director (with a copy to Xxxxxxx
Spidi & Xxxxx, PC, 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, X.X.
00000, Attention: Xxxx X. Spidi, Esq.); if to the Company, shall be sufficient
in all respects if mailed, delivered or telegraphed and confirmed in writing to
Community Bank System, Inc., 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxx, President and Chief Executive Officer (with a copy to
Bond, Xxxxxxxxx & King, Xxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxx, Esq.).
13. Binding Effect. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 11 hereof, the officers, directors and employees and
controlling persons referred to therein and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to any provisions regarding conflicts of laws.
15. Counterparts. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and upon
the acceptance hereof by the Representatives, on behalf of each of the
Underwriters, this letter will constitute a binding agreement among the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in the Agreement among Underwriters, a copy of which shall be submitted to
the Company for examination, upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
COMMUNITY BANK SYSTEM, INC.
By:_____________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
XXXXXX XXXXXXXXXX XXXXX LLC ADVEST, INC.
By:_________________________________ By:_____________________
Name: Name:
Title: Title:
On behalf of each of the On behalf of each of the
Underwriters Underwriters
XXXXXXX XXXXX & ASSOCIATES, INC.
By:____________________________
Name:
Title:
On behalf of each of the
Underwriters
26
SCHEDULE I
Underwriter Total Number of Firm Number of Optional
----------- Shares to be Purchased Shares to be Purchased
---------------------- if Maximum Option Exercised
---------------------------
Xxxxxx Xxxxxxxxxx Xxxxx LLC
Advest, Inc.
Xxxxxxx Xxxxx & Associates,
Inc.
Total 1,200,000 180,000
========= =======
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
COMMUNITY BANK SYSTEM, INC.
LOCK-UP AGREEMENT
____________ __, 2001
XXXXXX XXXXXXXXXX XXXXX LLC
ADVEST, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives (the "Representatives")
of the Several Underwriters
Named in Schedule I hereto
c/o Janney Xxxxxxxxxx Xxxxx LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several
underwriters (the "Underwriters"), propose to enter into an underwriting
agreement (the "Underwriting Agreement") with Community Bank System, Inc. (the
"Company") providing for the public offering (the "Public Offering") by the
Underwriters, including yourself, of common stock of the Company (the "Common
Stock") pursuant to the Company's Registration Statement on Form S-3 (the
"Registration Statement").
In consideration of the Underwriters' agreement to purchase and make the
Public Offering of the Common Stock, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned hereby
agrees, for a period of 180 days after the effective date of the Registration
Statement (the "Lock-Up Period"), not to sell, offer to sell, solicit an offer
to buy, contract to sell, encumber, distribute, pledge, grant any option for the
sale of, or otherwise transfer or dispose of, directly or indirectly, in one or
a series of transactions (collectively, a "Disposition"), any shares of Common
Stock or any securities convertible or exercisable into or exchangeable for
shares of Common Stock (collectively, "Securities"), now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has
acquired or hereafter acquires the power of disposition, without the prior
written consent of the Representatives. Prior to the expiration of the Lock-Up
Period, the undersigned agrees that it will not announce or disclose any
intention to do anything after the expiration of such period which the
undersigned is prohibited, as provided in the preceding sentence, from doing
during the Lock-Up Period. In addition, for the benefit of the Company and the
Underwriters, the undersigned hereby (i) waives any right it may have to cause
the Company to register pursuant to the Securities Act of 1933, as amended,
shares of Common Stock now owned or hereafter
acquired or received by the undersigned as a result of the Public Offering and
(ii) during the Lock-Up Period, agrees not to exercise any such registration
rights and further agrees that the Company shall not be obligated to register
any shares in violation of the Underwriting Agreement.
The undersigned acknowledges and agrees that the restrictions above are
expressly agreed to preclude the holder of the Securities from engaging in any
hedging or other transaction which is designed to or reasonably expected to lead
to or result in a Disposition of Securities (or the economic equivalent thereof)
during the Lock-Up Period even if such Securities would be disposed of by
someone other than the undersigned. Such prohibited hedging or other
transactions would include, without limitation, any short sale (whether or not
against the box) or any purchase, sale or grant of any right (including, without
limitation, any put or call option) with respect to any Securities or with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value from the
Securities.
The undersigned hereby also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent against the transfer of
the Securities held by the undersigned except in compliance with the Lock-Up
Agreement.
It is understood that, if the Underwriting Agreement is not executed, or
if the Underwriting Agreement shall terminate or be terminated prior to payment
for and delivery of the Common Stock the subject thereof, this Lock-Up Agreement
shall automatically terminate and be of no further force or effect.
This Lock-Up Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania (without giving effect to its
conflict of laws provisions).
Very truly yours,
Name:
2
