1
EXHIBIT 1
RBI CAPITAL TRUST I
(a Delaware business trust)
2,500,000 Preferred Securities
____% Preferred Securities
(Liquidation Amount $10 per Preferred Security)
UNDERWRITING AGREEMENT
_______________, 1997
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
RBI Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and Republic Bancshares, Inc., a Florida corporation (the
"Company") as depositor of the Trust and as guarantor (hereafter the Trust and
the Company are referred to collectively as the "Offerors"), hereby confirm
their agreement (the "Agreement") with Xxxxxxx X. Xxxxx & Co. and Xxxx Xxxx &
Co., Inc. (the "Underwriters"), with respect to the issue and sale by the Trust
and the purchase by the Underwriters, acting severally and not jointly, in such
amounts as are set forth in Schedule A hereto opposite the name of such
Underwriter, of 2,500,000 (the "Initial Securities") of the Trust's _____%
Preferred Securities (the "Preferred Securities"). The Trust and the Company
also propose to issue and sell to the Underwriters, at the Underwriters' option,
up to an additional 375,000 Preferred Securities (the "Option Securities") as
set forth herein. The term "Preferred Securities" as used herein, unless
indicated otherwise, shall mean the Initial Securities and the Option
Securities.
2
The Preferred Securities and the Common Securities (as defined
herein) are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement dated as of _______, 1997 (the "Trust Agreement"), among the Company,
as depositor, and Wilmington Trust Company ("Trust Company"), a Delaware banking
corporation, as property trustee ("Property Trustee") and ______________ as
Delaware trustee ("Delaware Trustee") and Xxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxx
and Xxxxxxxxxxx X. Xxxxxx (the "Administrative Trustees" and together with the
Property Trustee and the Delaware Trustee, the "Trustees") and the holders from
time to time of undivided interests in the assets of the Trust. The Preferred
Securities will be guaranteed by the Company, on a subordinated basis and
subject to certain limitations, with respect to distributions and payments upon
liquidation, redemption or otherwise (the "Guarantee") pursuant to the Preferred
Securities Guarantee Agreement dated as of________, 1997 (the "Guarantee
Agreement") between the Company and the Trust Company, as guarantee trustee (the
"Guarantee Trustee"). The assets of the Trust will consist of _____% junior
subordinated debentures due___________, 2027 (the "Junior Subordinated
Debentures") of the Company which will be issued under the Indenture dated as
of_______, 1997 (the "Indenture"), between the Company and the Trust Company, as
trustee (the "Indenture Trustee"). The Company has agreed to pay all costs,
expenses and liabilities of the Trust payable to third parties, with certain
exceptions, pursuant to the Agreement as to Expenses and Liabilities, dated as
of __________, 1997 between the Company and the Trust (the "Expense Agreement").
Under certain circumstances, the Junior Subordinated Debentures will be
distributable to the holders of undivided beneficial interests in the assets of
the Trust. The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
the Trust's common securities (the "Common Securities"), and will be used by the
Trust to purchase an equivalent amount of the Junior Subordinated Debentures.
The initial public offering price for the Preferred
Securities, the purchase price to be paid by the Underwriters for the Preferred
Securities, the commission per Preferred Security to be paid by the Company to
the Underwriters and the rate of interest to be paid on the Preferred Securities
shall be agreed upon by the Company and the Underwriters, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Company and the Underwriters and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering of
the Preferred Securities will be governed by this Agreement, as supplemented by
the Price Determination Agreement. From and after the date of the execution and
delivery of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-2
(File Nos. 333-______ and 333-______-01) covering the registration of the
Preferred Securities, the Guarantee and the Junior Subordinated Debentures under
the Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such
2
3
registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto and the
documents incorporated by reference therein pursuant to Item 12 of Form S-2
under the 1933 Act, at the time it becomes effective, is herein called the
"Registration Statement", and the prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-2 under the 1933
Act, included in the Registration Statement at the time it becomes effective is
herein called the "Prospectus" except that, if any revised prospectus provided
to the Underwriters by the Company for use in connection with the offering of
the Preferred Securities differs from the prospectus included in the
Registration Statement at the time it becomes effective (whether or not such
prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first furnished to the Underwriters for such use.
The Company understands that the Underwriters propose to make
a public offering of the Preferred Securities (the "Offering") as soon as
possible after the Registration Statement becomes effective. The Underwriters
may assemble and manage a selling group of broker-dealers that are members of
the National Association of Securities Dealers, Inc. ("NASD") to participate in
the solicitation of purchase orders for the Preferred Securities under a
selected dealer agreement, the form of which is set forth as Exhibit B to this
Agreement.
The Company hereby confirms its engagement of Xxxx, Xxxx &
Co., Inc. as, and Xxxx, Xxxx & Co., Inc. hereby confirms its agreement with the
Company to render services as, "qualified independent underwriter" within the
meaning of Section 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. with respect to the offering and sale of the Preferred
Securities. Xxxx, Xxxx & Co., Inc., solely in its capacity as qualified
independent underwriter and not otherwise, is referred to herein as the
"Independent Underwriter".
Section 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant
to and agree with the Underwriters that:
(i) The Company meets the requirements for use of Form S-2
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below and with respect to Option Securities,
up to the Date of Delivery referred to below, (A) the Registration
Statement and any amendments and supplements thereto will comply in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"); (B) neither the Registration Statement nor any amendment
or supplement thereto will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and (C) neither the
Prospectus nor any amendment or supplement thereto will include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
this representation and warranty does
3
4
not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Offerors by the
Underwriters expressly for use in the Registration Statement or the
Prospectus, or any information contained in any Form T-1 which is an
exhibit to the Registration Statement. The statements contained under
the caption "Underwriting" in the Prospectus constitute the only
information furnished to the Offerors in writing by the Underwriters
expressly for use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-2 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read together and
with the other information in the Prospectus, at the time the
Registration Statement becomes effective and at all times subsequent
thereto up to the Closing Time, will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, in each case after excluding any statement that does not
constitute a part of the Registration Statement or the Prospectus
pursuant to Rule 412 of the 1933 Act Regulations.
(iii) Xxxxxx Xxxxxxxx LLP, who are reporting upon the audited
financial statements included or incorporated by reference in the
Registration Statement, are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Offerors and, when duly executed by the Underwriters,
will constitute the valid and binding agreement of the Offerors
enforceable against the Offerors in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Guarantee Agreement, the Junior Subordinated
Debentures, the Trust Agreement, the Expense Agreement and the
Indenture have each been duly authorized and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the
Guarantee Trustee, in the case of the Trust Agreement, by the Trustees,
and in the case of the Indenture, by the Indenture Trustee, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their respective terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or general equitable principles;
the Junior Subordinated Debentures are entitled to the benefits of the
Indenture; and the Guarantee Agreement, the Junior Subordinated
Debentures, the Trust Agreement, the Expense Agreement and the
Indenture conform in all material respects to the descriptions thereof
in the Prospectus. The Trust Agreement, the Guarantee Agreement, and
the Indenture have been duly qualified under the Trust Indenture Act.
(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and
4
5
the consolidated results of operations and cash flows of the Company
and its subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise stated therein. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial, pro forma and statistical data included in the
Prospectus are accurate in all material respects and present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited and unaudited consolidated financial
statements included or incorporated by reference in the Registration
Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus. Each subsidiary of the Company is an entity duly organized,
validly existing and in good standing under the laws of its respective
jurisdiction of organization with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
business. The Company and each of its subsidiaries is duly qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(vii) The Company is duly registered under the Bank Holding
Company Act of 1956, as amended; each subsidiary of the Company that
conducts business as a bank is duly authorized to conduct such business
in each jurisdiction in which such business is currently conducted; and
the deposit accounts of Republic Bank (the "Bank") are insured by
either the Savings Association Insurance Fund or the Bank Insurance
Fund of the Federal Deposit Insurance Corporation ("FDIC"), up to the
maximum allowable limits thereof. The Offerors have all such power,
authority, authorization, approvals and orders as may be required to
enter into this Agreement, to carry out the provisions and conditions
hereof and to issue and sell the Preferred Securities.
(viii) The Bank is a Florida chartered commercial bank duly
organized, validly existing and in good standing under the laws of the
State of Florida with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business; the
Bank is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise. All of the outstanding shares of capital stock of the Bank
have been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Company directly, free and clear of
any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind. All of the outstanding shares of capital stock
of the Company's
5
6
subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by either the Company or the Bank
directly, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind.
(ix) Except for the Bank, the Company does not have any
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
under the 0000 Xxx.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization".
(xi) The Preferred Securities have been duly and validly
authorized by the Trust for issuance and sale to the Underwriters
pursuant to this Agreement and, when executed and authenticated in
accordance with the Terms of the Trust Agreement and delivered by the
Trust to the Underwriters pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued and fully
paid and non-assessable and will constitute valid and legally binding
obligations of the Trust enforceable in accordance with their terms and
entitled to the benefits provided by the Trust Agreement. The Trust
Agreement has been duly authorized and, when executed by the Property
Trustee, the Delaware Trustee and the Administrative Trustees of the
Trust and delivered by the Trust, will have been duly executed and
delivered by the Trust and will constitute the valid and legally
binding instrument of the Trust, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law). The Preferred Securities conform, in all material respects,
to the statements relating thereto contained in the Prospectus and such
description conforms, in all material respects, to the rights set forth
in the instruments defining the same; the holders of the Preferred
Securities (the "Securityholders") will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware; and the issuance of the Preferred Securities is
not subject to the preemptive or other similar rights of any
securityholder of the Company.
(xii) The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the Company
against payment therefor as described in the Prospectus, will be duly
and validly issued and fully paid undivided beneficial interests in the
assets of the Trust and will conform, in all material respects, to the
description thereof contained in the Prospectus; the issuance of the
Common Securities is not subject to preemptive or other similar rights;
and at the Closing Time, all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(xiii) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Act
with the power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus, and the Trust
has conducted no business to date, and it will conduct no business in
the future that would be
6
7
inconsistent with the description of the Trust set forth in the
Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and the
agreements and instruments contemplated by the Trust Agreement or
described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in
the Prospectus; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature.
(xiv) The issuance and sale of the Preferred Securities and
the Common Securities by the Trust, the compliance by the Trust with
all of the provisions of this Agreement, the purchase of the Junior
Subordinated Debentures by the Trust, and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, loan agreement, mortgage, deed of trust or other
agreement or instrument to which the Trust is a party or by which the
Trust is bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation of the
provisions of the Trust Agreement or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Trust or any of its properties, except in any
case for such conflicts, breaches, defaults or violations that would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of
the Company and its subsidiaries, considered as one enterprise; and no
consent, approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other
governmental agency or body is required to be obtained by the Trust for
the issue and sale of the Preferred Securities and the Common
Securities by the Trust, the purchase of the Junior Subordinated
Debentures by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement and the Trust Agreement,
except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already
been obtained, or as may be required under the 1933 Act or the 1933 Act
Regulations, 1934 Act or 1934 Act Regulations, state securities laws or
under the Trust Indenture Act of 1939, as amended ("TIA").
The issuance by the Company of the Guarantee and the Junior
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement, the execution, delivery and performance
by the Company of the Trust Agreement, the Junior Subordinated
Debentures, the Guarantee Agreement, the Expense Agreement and the
Indenture, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any material indenture, loan agreement, mortgage, deed of trust, or
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or by-laws of the Company or any of its subsidiaries or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, any
of its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, license, certificate, permit,
registration or qualification of or with
7
8
any such court or other governmental agency or body is required for the
issue of the Guarantee and the Junior Subordinated Debentures or the
consummation by the Company of the other transactions contemplated by
this Agreement, except for such consents, approvals, authorizations,
licenses, certificates, permits, registrations or qualifications as
have already been obtained, or as may be required under the 1933 Act or
the 1933 Act Regulations, 1934 Act or 1934 Act Regulations, state
securities laws or under the TIA.
(xv) The Trust is not, and after giving effect to the offering
and sale of the Preferred Securities will not be, an "investment
company," or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xvi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, and none of the outstanding shares of capital stock
was issued in violation of the preemptive rights of any stockholder of
the Company.
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock.
Neither the Company, the Bank, nor any other subsidiary has any
material liability of any nature, contingent or otherwise, except as
set forth in the Prospectus.
(xviii) Neither the Company, the Bank nor any other subsidiary
is in violation of any provision of its articles of incorporation,
charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it may be
bound or to which any of its properties may be subject, except for such
defaults that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xix) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company, the Bank or
any other subsidiary that is required to be disclosed in the Prospectus
or that could reasonably be expected to result in any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the
8
9
properties or assets of the Company and its subsidiaries, considered as
one enterprise, or that could reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in
this Agreement; all pending legal or governmental proceedings to which
the Company, the Bank or any other subsidiary is a party that are not
described in the Prospectus, including ordinary routine litigation
incidental to its business, if decided in a manner adverse to the
Company, would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xx) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xxi) The Company and its subsidiaries, including the Bank,
each has good and marketable title to all properties and assets
described in the Prospectus as owned by it, free and clear of all
liens, charges, encumbrances or restrictions, except such as (A) are
described in the Prospectus or (B) are neither material in amount nor
materially significant in relation to the business of the Company and
its subsidiaries, considered as one enterprise; all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company, the Bank or
any other subsidiary holds properties described in the Prospectus, are
in full force and effect, and neither the Company, the Bank nor any
other subsidiary has any notice of any material claim that has been
asserted by anyone adverse to the rights of the Company, the Bank or
any other subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of such corporation to
the continued possession of the leased or subleased premises under any
such lease or sublease.
(xxii) Each of the Company and its subsidiaries, including the
Bank, owns, possesses or has obtained all material governmental
licenses, permits, certificates, consents, orders, approvals and other
authorizations necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently
conducted, and neither the Company, the Bank nor any other subsidiary
has received any notice of any restriction upon, or any notice of
proceedings relating to revocation or modification of, any such
licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xxiii) No labor problem exists with the employees of the
Company or with employees of the Bank or any other subsidiary or to the
best knowledge of the Company, is imminent that could materially
adversely affect the Company and its subsidiaries, considered as one
enterprise, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its, the Bank's or any
other subsidiary's principal suppliers, contractors or customers that
could reasonably be expected to materially adversely affect the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
9
10
(xxiv) Except as disclosed in the Prospectus, there are no
persons with registration or other similar rights to have any
securities of the Company registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xxv) Except as disclosed in the Prospectus, the Company and
its subsidiaries, including the Bank, own or possess all patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets or other unpatented and/or unpatentable proprietary or
confidential information systems or procedures), trademarks,
servicemarks and tradenames (collectively, "patent and proprietary
rights") currently employed by them in connection with the business now
operated by them except where the failure to so own, possess or acquire
such patent and proprietary rights would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company, the
Bank nor any other subsidiary has received any notice nor is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any patent or proprietary rights, and which
infringement or conflict (if the subject of any unfavorable decision,
rule and refinement, singly or in the aggregate) could reasonably be
expected to result in any material adverse change in the condition
(financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xxvi) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments of all taxes
due and payable in respect of such returns and no material deficiency
has been asserted with respect thereto by any taxing authority.
(xxvii) The Company has filed with the NASD all documents and
notices required by the NASD of companies that have issued securities
that are traded in the over-the-counter market and quotations for which
are reported by the Nasdaq National Market of the Nasdaq Stock Market,
Inc. ("Nasdaq Stock Market").
(xxviii) Neither the Trust, the Company nor any subsidiary has
taken or will take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation, under the
Exchange Act or otherwise, of the price of the Preferred Securities.
(xxix) Neither the Company, the Bank nor any other subsidiary
is or has been (by virtue of any action, omission to act, contract to
which it is a party or by which it is bound, or any occurrence or state
of facts whatsoever) in violation of any applicable Federal, state,
municipal, or local statutes, laws, ordinances, rules, regulations
and/or orders issued pursuant to foreign, federal, state, municipal, or
local statutes, laws, ordinances, rules, or regulations (including
those relating to any aspect of banking, bank holding companies,
environmental protection, occupational safety and health, and equal
employment practices) heretofore or currently in effect, except such
violation that has been fully cured or satisfied without recourse or
that is not reasonably likely to have a material adverse effect on the
condition (financial or otherwise),
10
11
earnings, business affairs, assets or business prospects of the Company
and its subsidiaries, considered as one enterprise.
(xxx)Neither the Company, the Bank nor any other subsidiary
has any agreement or understanding with any entity concerning the
future acquisition by the Company or the Bank of a controlling interest
in any entity that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus; neither the Company, the Bank nor any other subsidiary has
any agreement or understanding with any entity concerning the future
acquisition of a controlling interest in the Company, the Bank or any
other subsidiary by any entity that is required by the 1933 Act or the
1933 Act Regulations to be disclosed by the Company that is not
disclosed in the Prospectus.
(xxxi)The Agreement and Plan of Merger (the "Merger
Agreement"), dated as of April 14, 1997, by and between the Company and
F.F.O. Financial Group, Inc. ("FFO") was duly authorized, executed and
delivered by the Company and constitutes a valid, legal and binding
obligation of the Company enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or other
laws relating to or affecting enforcement of creditors' rights
generally or by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law). The Company
had full corporate power and authority to enter into the Merger
Agreement. The execution, delivery and performance of the Merger
Agreement and the consummation of the transactions contemplated thereby
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, loan agreement, mortgage, deed of trust, or other material
agreement or instrument to which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or
any of its subsidiaries is subject, nor will such actions result in the
violation of the provisions of the articles of incorporation or by-laws
of the Company or any of its subsidiaries or any statute or any order
or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries; and no
consent, approval, authorization or order of, or any filing with, any
court or governmental agency or body is required for the execution,
delivery and performance of the Merger Agreement and the transactions
contemplated thereby, except such as may be required under the 1933 Act
or state securities laws or regulatory approvals contemplated by the
Merger Agreement. To the knowledge of the Company, each of the
representations and warranties of FFO contained in the Merger Agreement
are true and correct in all material respects.
(b) Any certificate signed by any authorized officer of the
Company or the Bank and delivered to the Underwriters or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered thereby.
11
12
Section 2. Sale and Delivery to the Underwriters; Closing.
(a)On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Trust
agrees to sell to the Underwriters, and the Underwriters agree to purchase from
the Trust 2,500,000 Initial Securities at the purchase price and terms set forth
herein and in the Price Determination Agreement.
In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants an option to the Underwriters to purchase up to
an additional 375,000 Preferred Securities in accordance with the terms set
forth herein and in the Price Determination Agreement. The option hereby granted
will expire at 5:00 p.m. on the 30th day after the date the Registration
Statement is declared effective by the Commission (or at 5:00 p.m. on the next
business day if such 30th day is not a business day) and may be exercised, on
one occasion only, solely for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the Underwriters are exercising the option and the time,
date and place of payment and delivery for the Option Securities. Such time and
date of delivery (the "Option Closing Date") shall be determined by the
Underwriters but shall not be later than five full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, nor earlier than the second business day after the date on which the
notice of the exercise of the option shall have been given.
(b)Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
_____________, or at such other place as shall be agreed upon by the Company and
the Underwriters, at 9:30 a.m. on the third full business day after the
effective date of the Registration Statement, or at such other time not earlier
than three nor more than ten full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being herein
called the "Closing Time"). In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Option Securities shall be
made at the above-mentioned office of ______________________, or at such other
place as shall be agreed upon by the Company and the Underwriters, on the Option
Closing Date as specified in the notice from the Underwriters to the Company.
Payment for the Initial Securities and the Option Securities, if any, shall be
made to the Company by wire transfer of immediately available funds, against
delivery to the Underwriters for the account of the Underwriter of Preferred
Securities to be purchased by it.
(c)The Initial Securities shall be issued in the form of one
or more fully registered global securities (the "Global Securities") in
book-entry form in such denominations and registered in the name of the nominee
of The Depository Trust Company (the "DTC") or in such names as the Underwriters
may request in writing at least two business days before the Closing Date or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available for examination by the Underwriters and counsel to the Underwriters
not later than 10:00 A.M. on the business day prior to the Closing Time or the
Option Closing Date, as the case may be.
12
13
Section 3. Certain Covenants of the Offerors. Each of the
Offerors covenants jointly and severally with the Underwriters as follows:
(a) The Offerors will use their best efforts to cause the
Registration Statement to become effective and will notify the Underwriters
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Preferred Securities or capital stock, for offering or sale
in any jurisdiction, or of the institution or threatening of any proceedings for
any of such purposes. The Offerors will use every reasonable effort to prevent
the issuance of any such stop order or of any order preventing or suspending
such use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Offerors will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement if the
Offerors have elected to rely upon Rule 430A, to the Prospectus (including
documents incorporated by reference into such prospectus or to the Prospectus)
of which the Underwriters shall not have previously been advised and have
previously been furnished a copy, or to which the Underwriters or counsel for
the Underwriters shall reasonably object.
(c) The Offerors have furnished or will furnish to you as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-2 under the 0000 Xxx) and signed copies of all
consents and certificates of experts as you may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the
Underwriters, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriters may reasonably request, and the Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will deliver
or cause to be delivered to the Underwriters, without charge, as soon as the
Registration Statement shall have become effective (or, if the Offerors have
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as the Underwriters may reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the Preferred
Securities as contemplated in this Agreement and in the Prospectus.
13
14
If, at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Preferred Securities, any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriters or counsel for the Offerors, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation
with the Underwriters, to qualify the Preferred Securities and the Junior
Subordinated Debentures, for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriters may designate
and to maintain such qualifications in effect for a period of not less than one
year from the effective date of the Registration Statement; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Preferred Securities
have been qualified as above provided.
(g) The Company will make generally available (within the
meaning of Rule 158) to its securityholders, the Underwriters and the
Securityholders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement of the Company and
its subsidiaries (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a period of at least 12 months beginning after the
effective date of the Registration Statement but not later than the first day of
the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the issuance by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of Junior Subordinated Debentures. The Company and the Bank will use the
net proceeds received by them from the sale of the Junior Subordinated
Debentures in the manner specified in the Prospectus under the caption "Use of
Proceeds".
(i) The Offerors, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Company will furnish to the Underwriters, copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
14
15
Commission, and such other documents, reports, Proxy Statements, and information
as shall be furnished by the Company to its stockholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all
documents and notices required by the Nasdaq Stock Market of companies that have
issued securities that are traded on the National Market, in the
over-the-counter market and quotations for which are reported by the Nasdaq
Stock Market.
(l) The Company shall pay for the legal fees and related
filing fees to the counsel to the Underwriters to prepare one or more "blue sky"
surveys (each, a "Blue Sky Survey") for use in connection with the offering of
the Preferred Securities as contemplated by the Prospectus and a copy of such
Blue Sky Survey or surveys shall be delivered to each of the Company and the
Underwriters.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file
or transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A,
a post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the
issuance of the Preferred Securities, prepare and distribute to each of the
Underwriters and counsel to the Underwriters, copies of the documents used in
connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or
thirty (30) days after the date of this Agreement, whichever occurs first, incur
any material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, except as
contemplated by the Prospectus.
(p) During a period of thirty days from the date of the
Prospectus, neither the Trust nor the Company will, without the prior written
consent of the Underwriters, directly or indirectly, offer, sell, offer to sell,
or otherwise dispose of any Preferred Securities, any other beneficial interests
in the assets of the Trust, or any preferred securities or other securities of
the Trust or the Company which are substantially similar to the Preferred
Securities, including any guarantee of such securities. The foregoing sentence
shall not apply to any of the Preferred Securities to be sold hereunder.
Section 4. Payment of Expenses and Independent Underwriter
Fee.
(a) The Company will pay and bear all costs and expenses
incident to the performance of its and the Trust's obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the preparation, printing and distribution of
this Agreement, the Preferred Securities and the Blue Sky Survey, (c) the
issuance and delivery of the Preferred Securities to the Underwriters, including
any transfer taxes
15
16
payable upon the sale of the Preferred Securities to the Underwriters, (d) the
fees and disbursements of the Company's counsel and accountants, (e) NASD filing
fees, (f) fees and disbursements of counsel to the Underwriters in connection
with the Blue Sky Survey, (g) the qualification of the Preferred Securities
under the applicable securities laws in accordance with Section 3(f) and any
filing fee for review of the offering with the NASD, (h) the legal fees and
expenses of the Underwriters' counsel (such counsel's fees shall not exceed
$65,000 exclusive of out-of-pocket expenses of counsel) and general
out-of-pocket expenses of the Underwriters not to exceed $15,000, (i) the fees
and expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee, in connection with the Indenture and the
Junior Subordinated Debentures; (j) the fees and expenses of the Property
Trustee and Delaware Trustee, including the fees and disbursements of counsel
for the Property Trustee and the Delaware Trustee, in connection with the Trust
Agreement and the Certificate of Trust, and (k) all other costs incident to the
performance of the Offerors' obligations hereunder.
(b) The Independent Underwriter shall be entitled to the
payment of a fee of $10,000 for fulfilling its obligations as Independent
Underwriter which shall be payable at the Closing Time, provided that such fee
shall be payable out of the commissions due to the Underwriters under the Price
Determination Agreement.
If (i) the Closing Time does not occur on or before December
31, 1997, (ii) the Company abandons or terminates the Offering, or (iii) this
Agreement is terminated by the Underwriters in accordance with the provisions of
Section 5 or 11(a), the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, as set forth in this Section 4, including the
reasonable fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Preferred Securities
that each has respectively agreed to purchase pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Offerors
contained herein or in certificates of the officers or trustees of the Offerors
or any subsidiary delivered pursuant to the provisions hereof, to the
performance by the Offerors of their obligations hereunder and to the following
further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing; at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriters' knowledge or the knowledge of the Offerors
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriters. If the Offerors have elected to
rely upon Rule 430A, a prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 43OA).
16
17
(b) At the Closing Time, you shall have received:
(i) The favorable opinion, dated as of Closing Time, of
Holland & Knight, LLP, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, substantially
in the form set forth in Exhibit C.
(ii) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel for the Offerors,
in form and substance satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit D.
(iii) The favorable opinion, dated as of Closing Time,
of_______________, counsel for the Indenture Trustee and the Delaware
Trustee, in form and substance satisfactory to counsel for the
Underwriters, substantially in the form set forth in Exhibit E.
(iv) The favorable opinion, dated as of Closing Time, of
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., counsel for
the Underwriters, in form and substance satisfactory to the
Underwriters.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal
law of the United States, upon opinions of other counsel, who shall be
counsel satisfactory to counsel for the Underwriters (the Underwriters
agree and acknowledge that Holland & Knight, LLP and Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., will rely on the opinion of
Xxxxxxxx, Xxxxxx & Finger with respect to matters of Delaware law), in
which case the opinion shall state that counsel believes that you and
your counsel are entitled to so rely. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the
Company, the Bank and the Trust and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date,
(i) the Registration Statement and the Prospectus, as they may then be
amended or supplemented, shall contain all statements that are required
to be stated therein under the 1933 Act and the 1933 Act Regulations
and in all material respects shall conform to the requirements of the
1933 Act and the 1933 Act Regulations, the Offerors shall have complied
in all material respects with Rule 430A (if they shall have elected to
rely thereon) and neither the Registration Statement nor the
Prospectus, as they may then be amended or supplemented, shall contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of
the Company and its subsidiaries, considered as one enterprise, whether
or not arising in the ordinary course of business, (iii) no action,
suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Offerors, threatened against the Company or any
subsidiary or the Trust that would be required to be set forth in the
Prospectus other than as set forth therein and no proceedings shall be
pending or, to the knowledge of the Offerors, threatened against the
Offerors or any subsidiary before or by any federal, state or other
commission, board or administrative agency wherein
17
18
an unfavorable decision, ruling or finding could reasonably be expected
to materially adversely affect the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company
and its subsidiaries, considered as one enterprise, other than as set
forth in the Prospectus, (iv) each of the Offerors shall have complied,
in all material respects, with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time, (v) the other representations and warranties of the
Offerors set forth in Section l(a) shall be accurate in all material
respects as though expressly made at and as of the Closing Time, and
(vi) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
been initiated or to the best knowledge of the Offerors threatened by
the Commission. At the Closing Time, the Underwriters shall have
received a certificate of the Chairman or the President, and the Chief
Financial Officer or Controller, of the Company, dated as of the
Closing Time, to such effect.
(d)(1) At the time that this Agreement is executed by the
Company, you shall have received from Xxxxxx Xxxxxxxx LLP a letter or
letters, dated such date, in form and substance satisfactory to you,
confirming that they are independent certified public accountants with
respect to the Company within the meaning of the 1933 Act and the
published 1933 Act Regulations, and stating in effect that:
With respect to the Company:
(i) in their opinion, the consolidated financial statements as
of December 31, 1996 and 1995, and for each of the years in the three
year period ended December 31, 1996 and the related financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their opinions
included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the published
1933 Act Regulations;
(ii) on the basis of a reading of the minutes of all meetings
of the stockholders of the Company and the Bank, of the Board of
Directors of the Company and the Bank and of the Audit and Executive
Committees of the Board of Directors of the Bank since December 31,
1996, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any change in
specified financial data of the Company and its consolidated
subsidiaries or any increase in the number of outstanding
shares of capital stock of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in
the financial statements at March 31, 1997 included in the
Registration Statement; or
18
19
(B) for the period from April 1, 1997 to a specified
date not more than three days prior to the date of this
Agreement, there was any change in specified financial data,
in each case as compared with the comparable period in the
preceding year.
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement
(including the Selected Consolidated Financial Data) (having compared
such items with, and have found such items to be in agreement with, the
financial statements of the Company or general accounting records of
the Company, as applicable, which are subject to the Company's internal
accounting controls or other data and schedules prepared by the Company
from such records).
(iv) on the basis of a review of schedules provided to them by
the Company, nothing came to their attention that caused them to
believe that the pro forma information, set forth in the Prospectus
under the heading "Capitalization" and under the heading "Pro Forma
Financial Data" had not been correctly calculated on the basis
described therein.
(2) At the time that this Agreement is executed by the
Company, you shall also have received from Hacker, Johnson, Xxxxx &
Xxxxx a letter or letters, dated such date, in form and substance
satisfactory to you, confirming that they are independent certified
public accountants with respect to FFO within the meaning of the 1933
Act and the published 1933 Act Regulations, and stating in effect that:
With respect to FFO:
(i) in their opinion, the consolidated financial statements as
of December 31, 1996 and 1995, and for each of the years in the three
year period ended December 31, 1996 and the related financial statement
schedules, if any, included in the Registration Statement and the
Prospectus and covered by their opinions included therein comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the published 1933 Act Regulations;
(ii) on the basis of a reading of the minutes of all meetings
of the stockholders of FFO and First Federal Savings and Loan
Association of Osceola County ("First Federal"), of the Board of
Directors of FFO and First Federal and of the Audit and Executive
Committees of the Board of Directors of First Federal since December
31, 1996, inquiries of certain officials of FFO and its subsidiaries
responsible for financial and accounting matters, and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
19
20
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any change in
specified financial data of FFO and its consolidated
subsidiaries in each case as compared with amounts shown in
the financial statements at March 31, 1997 included in the
Registration Statement; or
(B) for the period from April 1, 1997 to a specified
date not more than three days prior to the date of this
Agreement, there was any change in specified financial data,
in each case as compared with the comparable period in the
preceding year.
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement
(having compared such items with, and have found such items to be in
agreement with, the financial statements of FFO or general accounting
records of FFO, as applicable, which are subject to FFO's internal
accounting controls or other data and schedules prepared by FFO from
such records).
(iv) on the basis of a review of schedules provided to them by
FFO, nothing came to their attention that caused them to believe that
the pro forma information, set forth in the Prospectus under the
heading "Capitalization" and under the heading "Pro Forma Financial
Data" had not been correctly calculated on the basis described therein.
(e) At the Closing Time, the Underwriters shall have received
from Xxxxxx Xxxxxxxx LLP and Hacker, Johnson, Xxxxx & Xxxxx letters, in form and
substance satisfactory to the Underwriters and dated as of the Closing Time, to
the effect that they reaffirm the statements made in the respective letter(s)
furnished pursuant to Section 5(d), except that the inquiries specified in
Section 5(d) shall be made based upon the latest available unaudited interim
consolidated financial statements and the specified date referred to shall be a
date not more than three days prior to the Closing Time.
(f) At the Closing Time, counsel for the Underwriters shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Preferred Securities as contemplated in this Agreement and the matters
referred to in Section 5(c) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Offerors, the performance of any of the covenants of the Offerors, or the
fulfillment of any of the conditions herein contained; all proceedings taken by
the Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Preferred Securities and the Junior
Subordinated Debentures as contemplated in this Agreement shall be satisfactory
in form and substance to the Underwriters and to counsel for the Underwriters.
20
21
(g) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(h) The Company shall have paid, or made arrangements
satisfactory to the Underwriters for the payment of, all such expenses as may be
required by Section 4 hereof.
(i) In the event the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the Underwriters to purchase the Option
Securities that they have agreed to purchase shall be subject to the accuracy of
the representations and warranties of the Offerors contained herein and of the
statements in any certificates furnished by the Offerors hereunder as of such
Option Closing Date (as if made on such date), to the performance by the
Offerors of their obligations hereunder and to the receipt by you on the Option
Closing Date of:
(1) A certificate, dated the Option Closing Date, of
the Chairman or the President and the Chief Financial Officer
or Controller of the Company confirming that the certificate
delivered on the Closing Time pursuant to Section 5(c) hereof
remains true as of the Option Closing Date;
(2) The favorable opinion of Holland & Knight, LLP,
counsel for the Company, addressed to you and dated the Option
Closing Date, in form satisfactory to Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., counsel to the
Underwriters, relating to the Option Securities and otherwise
to the same effect as the opinion required by Section 5(b)
hereof;
(3) The favorable opinion of Xxxxxxxx, Xxxxxx &
Finger, special Delaware counsel for the Offerors, addressed
to you and dated the Option Closing Date, in form satisfactory
to Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.,
counsel to the Underwriters, relating to the Option Securities
and otherwise to the same effect as the opinion required by
Section 5(b) hereof;
(4) The favorable opinion of____________, counsel for
the Indenture Trustee and the Delaware Trustee, addressed to
you and dated the Option Closing Date, relating to the Option
Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof;
(5) The favorable opinion of Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., dated the Option Closing
Date, relating to the Option Shares
21
22
and otherwise to the same effect as the opinion required by
Section 5(b) hereof; and
(5) Letters from Xxxxxx Xxxxxxxx LLP and Hacker,
Johnson, Xxxxx & Xxxxx addressed to each of the Underwriters
and dated the Option Closing Date, in form and substance
satisfactory to the Underwriters and substantially the same in
form and substance as the letters furnished to the
Underwriters pursuant to Section 5(d) hereof.
(j) The Preferred Securities, the Guarantee and the Junior
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration, under
the Blue Sky Laws of such jurisdictions as shall have been reasonably specified
by the Underwriters and the offering contemplated by this Agreement shall have
been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriters on notice to the Offerors at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7, 10 and 12
shall remain in effect.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriters, officers, directors, employees, agents, and counsel of the
Underwriters (including any Underwriter in its role as Independent Underwriter),
and each person, if any, who controls the Underwriters within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any loss,
liability, claim, damage, and expense whatsoever (which shall include, but not
be limited to amounts incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Preferred Securities under the "blue sky" or securities
laws thereof or filed with the Commission or any securities exchange; unless
such statement or omission or alleged statement or omission was made in reliance
upon and in conformity with written information concerning the Underwriters, the
Underwriting Agreement or the compensation of the Underwriters furnished to the
Company by or on behalf of the Underwriters expressly for inclusion in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or in any
22
23
application, as the case may be, or (ii) any breach of any representation,
warranty, covenant, or agreement of the Company contained in the Underwriting
Agreement. For purposes of this section, the term "expense" shall include, but
not be limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by the Underwriters' directors, officers,
employees and counsel according to his or her normal hourly billing rates. The
indemnification provisions shall also extend to all affiliates of the
Underwriters, their respective directors, officers, employees, legal counsel,
agents and controlling persons within the meaning of the federal securities
laws. The foregoing agreement to indemnify shall be in addition to any liability
the Company may otherwise have to the Underwriters or the persons entitled to
the benefit of these indemnification provisions.
(b) The Underwriters agrees to indemnify and hold harmless the
Offerors, their directors, officers who signed the Registration Statement, and
each person, if any, who controls the Offerors within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) above, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or any application in
reliance upon and in conformity with written information about the Underwriters,
the Underwriting Agreement, or the compensation of the Underwriters, furnished
to either of the Offerors by the Underwriters expressly for use in the
Registration Statement (or any amendment thereto) or such Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) or in any
application.
(c) An indemnified party shall give prompt notice to the
indemnifying party if any action, suit, proceeding or investigation is commenced
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve the indemnifying party from its
obligations to indemnify hereunder, except to the extent that the indemnifying
party has been prejudiced in any material respect by such failure. If it so
elects within a reasonable time after receipt of such notice, an indemnifying
party may assume the defense of such action, including the employment of counsel
satisfactory to the indemnified parties and payment of all expenses of the
indemnified party in connection with such action. Such indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such action or the indemnifying party shall not have promptly
employed counsel satisfactory to such indemnified party or parties or such
indemnified party or parties shall have reasonably concluded that there may be
one or more legal defenses available to it or them or to other indemnified
parties which are different from or additional to those available to one or more
of the indemnifying parties, in any of which events such fees and expenses shall
be borne by the indemnifying party and the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties. The Company shall be liable for any settlement of any claim against the
Underwriters (or their directors, officers, employees, affiliates or controlling
persons), made with the Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the written consent of the
Underwriters, settle or compromise any claim against them based upon
circumstances giving rise to an indemnification claim against the Company
hereunder unless such settlement or compromise provides that the Underwriters
23
24
and the other indemnified parties shall be unconditionally and irrevocably
released from all liability in respect to such claim.
(d) In order to provide for just and equitable contribution,
if a claim for indemnification pursuant to these indemnification provisions is
made but it is found in a final judgment by a court that such indemnification
may not be enforced in such case, even though the express provisions hereof
provide for indemnification in such case, then the Company, on the one hand, and
the Underwriters, on the other hand, shall contribute to the amount paid or
payable by such indemnified persons as a result of such loss, liability, claim,
damage and expense 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 underwriting, and also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements, acts or omissions which resulted in such loss, liability claim,
damage and expense, and any other relevant equitable considerations shall also
be considered. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not also found
liable for such fraudulent misrepresentation or omission. Notwithstanding the
foregoing, the Underwriters shall not be obligated to contribute any amount
hereunder that exceeds the amount of the underwriting commission paid by the
Company to the Underwriters with respect to the Preferred Securities purchased
by the Underwriters.
(e) The indemnity and contribution agreements contained herein
are in addition to any liability which the Company may otherwise have to the
Underwriters.
(f) Neither termination nor completion of the engagement of
the Underwriters nor any investigation made by or on behalf of the Underwriters
shall effect the indemnification obligations of the Company or the Underwriters
hereunder, which shall remain and continue to be operative and in full force and
effect.
Section 7. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Offerors or its officers or trustees set forth in or
made pursuant to this Agreement will remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Offerors or
the Underwriters or any controlling person and will survive delivery of and
payment for the Preferred Securities.
Section 8. Offering by the Underwriters. The Trust and the
Company are advised by the Underwriters that the Underwriters propose to make a
public offering of the Preferred Securities, on the terms and conditions set
forth in the Registration Statement from time to time as and when the
Underwriters deem advisable after the Registration Statement becomes effective.
Because the NASD is expected to view the Preferred Securities as interests in a
direct participation program, the offering of the Preferred Securities is being
made in compliance with the applicable provisions of Rule 2810 of the NASD's
Conduct Rules.
24
25
Section 9. Termination of Agreement.
(a) You may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' reasonable judgment, impracticable to
market the Preferred Securities or enforce contracts for the sale of the
Preferred Securities, or (iii) if trading in any securities of the Company has
been suspended by the Commission or the National Association of Securities
Dealers, Inc., or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority with
appropriate jurisdiction over such matters, or (iv) if a banking moratorium has
been declared by either federal or Florida authorities, or (v) if there shall
have been such material and substantial change in the market for securities in
general or in political, financial or economic conditions as in your reasonable
judgment makes it inadvisable to proceed with the Offering, sale and delivery of
the Preferred Securities on the terms contemplated by the Prospectus, or (vi) if
you reasonably determine (which determination shall be in good faith) that there
has not been satisfactory disclosure of all relevant financial information
relating to the Offerors in the Offerors' disclosure documents and that the sale
of the Preferred Securities is inadvisable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6 and 7 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Initial Securities that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted Securities"), you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate liquidation amount of Defaulted
Securities does not exceed 10% of the aggregate liquidation amount of Initial
Securities, the non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective Initial Securities
underwriting obligation proportions bear to the underwriting obligations of all
non-defaulting Underwriters; or
25
26
(b) if the aggregate liquidation amount of Defaulted
Securities exceeds 10% of the aggregate liquidation amount of Initial
Securities, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect to its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Offerors shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriters:
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx, First Vice President
and
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxx, Senior Vice President
with a copy to:
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
Suite 2200
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
26
27
If to the Company or the Trust:
Republic Bancshares, Inc.
000 Xxxxxx Xxxxxx, X.X.
Xxxxx Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Chairman and Chief Executive Officer
with a copy to:
Holland & Knight, LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Section 11. Parties. This Agreement is made solely for the
benefit of the Underwriters, and the officers, directors, employees,
agents and counsel of the Underwriters specified in Section 6, the
Trust and the Company and, to the extent expressed, any person
controlling the Trust, the Company or the Underwriters, and the
directors of the Company, or trustees of the Trust, their respective
officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any
purchaser, as such purchaser, from the Underwriters of the Preferred
Securities.
Section 12. Arbitration. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any
persons bound hereby arising out of, or by virtue of, or in connection
with, or otherwise relating to this Agreement shall be submitted to and
settled by arbitration conducted in Tampa, Florida before one or three
arbitrators, each of whom shall be knowledgeable in the field of
securities law and investment banking. Such arbitration shall otherwise
be conducted in accordance with the rules then obtaining of the
American Arbitration Association. The parties hereto agree to share
equally the responsibility for all fees of the arbitrators, abide by
any decision rendered as final and binding, and waive the right to
appeal the decision or otherwise submit the dispute to a court of law
for a jury or non-jury trial. The parties hereto specifically agree
that neither party may appeal or subject to the award or decision of
any such arbitrator to appeal or review in any court of law or in
equity or in any other tribunal, arbitration system or otherwise.
Judgment upon any award granted by such arbitrator may be enforced in
any court having jurisdiction thereof.
Section 13. Governing Law and Time. This Agreement shall be
governed by the laws of the State of Florida. Specified times of the
day refer to New York City time.
Section 14. Counterparts. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by
each party, all such counterparts taken together shall constitute one
and the same agreement.
27
28
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof,
whereupon this instrument will become a binding agreement between the
Company and the Underwriters in accordance with its terms.
Very truly yours,
RBI CAPITAL TRUST I
By:
-----------------------------------------
Name:
Title: Trustee
REPUBLIC BANCSHARES, INC.
By:
-----------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXXX X. XXXXX & CO.
By:
-----------------------------------
Name:
Title:
XXXX, XXXX & CO., INC.
By:
-----------------------------------
Name:
Title:
28
29
SCHEDULE A
AMOUNT OF PERCENTAGE OF
INITIAL SECURITIES INITIAL SECURITIES
UNDERWRITER TO BE PURCHASED TO BE PURCHASED
----------- --------------- ---------------
XXXXXXX X. XXXXX & CO.
XXXX, XXXX & CO., INC.
========= ===
TOTAL 2,500,000 100%
29
30
EXHIBIT A
RBI CAPITAL TRUST I
(a Delaware business trust)
2,500,000 Preferred Securities
___% Preferred Securities
(Liquidation Amount $10 per Preferred Security)
PRICE DETERMINATION AGREEMENT
____________, 1997
Xxxxxxx X. Xxxxx & Co.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Xxxx, Xxxx & Co., Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among RBI Capital Trust I, a Delaware business
trust (the "Trust"), Republic Bancshares, Inc. (the "Company" and together with
the Trust, the "Offerors") and the Underwriters named above (the
"Underwriters"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Trust, subject to the terms and conditions set forth
therein, of 2,500,000 of the _____% Preferred Securities of the Trust (the
"Preferred Securities"), subject to a 375,000 adjustment (to cover
over-allotments, if any). This Agreement is the Price Determination Agreement
referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors agree
with the Underwriters as follows:
1. The public offering price per Preferred Security shall be
$10.
2. The purchase price for the Preferred Securities to be paid
by the Underwriters shall be $10 per Preferred Security.
3. The commission per Preferred Security to be paid by the
Company to the Underwriters for their commitments hereunder shall be
$_____ per Preferred Security.
4. The interest rate on the Preferred Securities shall be
_____% per annum.
1
31
The Offerors represent and warrant to the Underwriters that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of Florida.
If the foregoing is in accordance with the understanding of the
Underwriters of the agreement between the Underwriters and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
RBI CAPITAL TRUST I
By:
----------------------------------------
Name:
Title: Trustee
REPUBLIC BANCSHARES, INC.
By:
----------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
XXXXXXX X. XXXXX & CO.
By:
-----------------------------
Name:
Title:
XXXX, XXXX & CO., INC.
By:
-----------------------------
Name:
Title:
2
32
EXHIBIT B
RBI CAPITAL TRUST I
2,500,000 PREFERRED SECURITIES
_____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
SELECTED DEALER AGREEMENT
___________ __, 1997
Ladies and Gentlemen:
RBI Capital Trust I, a Delaware business trust (the "Trust"), and
Republic Bancshares, Inc., a Florida corporation (the "Company" and together
with the Trust, the "Offerors"), are offering for sale to the public 2,500,000
of the Trust's __% Preferred Securities (the "Preferred Securities"), subject to
a 375,000 share option (to cover over-allotments, if any).
1. The Underwriters (the "Underwriters") named in the enclosed
Prospectus, have agreed to purchase from the Trust 2,500,000 Preferred
Securities and have an option to purchase from the Trust any or all of the
375,000 Preferred Securities to cover over-allotments, if any. The purchase is
subject to the terms of an agreement among the Underwriters and the Offerors
(the "Underwriting Agreement"). The Preferred Securities are more fully
described in the Prospectus. One or more of the Underwriters are severally
offering, subject to the terms and conditions stated herein and in the
Underwriting Agreement, a portion of the Preferred Securities to certain dealers
(the "Selling Group") as principals, subject to the terms and conditions stated
herein and in the Underwriting Agreement, subject to modification or
cancellation of the offering without notice, at the initial public offering
price per Preferred Security hereinafter set forth and on the cover page of the
Prospectus (the "Authorized Public Offering Price") less concessions (the
"Selling Concessions").
Authorized Public Offering
Price: $10 per Preferred Security
Dealer's Selling Concession: $____ per Preferred Security, payable or
allowable as set forth below.
Reallowances: You may reallow not in excess of $____ per
Preferred Security as a Selling Concession
to dealers who are members in good standing
of the National Association of Securities
Dealers, Inc. (the "NASD").
Delivery and Payment: Payment for the Preferred Securities sold to
you hereunder is to be made on ____________,
1997, or such other date as we advise you
and in such manner as we advise you, against
delivery of the Preferred
33
Securities, which shall be paid for in full
at the applicable Authorized Public Offering
Price or, if we so advise you, at such price
less the applicable Selling Concession. If
payment is at the applicable Authorized
Public Offering Price, the applicable
Selling Concession will be paid to you upon
termination of this Agreement.
Termination: This Agreement will terminate 30 days from
its date unless sooner terminated or
extended by us.
2. Members of the Selling Group may immediately offer Preferred
Securities for sale and take orders therefor at the Authorized Public Offering
Price, subject to confirmation and allotment by us. We, in turn, are prepared to
receive orders subject to confirmation and allotment by us. We reserve the right
to reject any order in whole or in part or to allot less than the number of
Preferred Securities applied for. Orders transmitted by telephone should be
confirmed by letter or facsimile transmission.
3. By becoming a member of the Selling Group, you agree (a) to take and
pay for Preferred Securities allotted and confirmed to you, (b) not to use any
such Preferred Securities to reduce or cover any short position you may have,
(c) to comply with Rules 2730, 2740, 2750, and 2810, and related interpretive
material of the NASD Conduct Rules, and (d) upon our request, to advise us of
the number of Preferred Securities purchased from us hereunder remaining unsold
by you and to resell to us any and all such unsold Preferred Securities at the
prices stated above, less all of such part of the concession allowed you as we
may determine.
4. It is assumed that the Preferred Securities sold by you will be
effectively placed for investment. If we purchase in the open market, for the
account of any Underwriter, Preferred Securities sold to you and not effectively
placed for investment, we may not allow you the dealer's concession on the
Preferred Securities so purchased or, if such concession has theretofore been
allowed you, you agree to pay it to us on demand.
5. Each Underwriter has consented that each of us, for our own account
as one of the Underwriters, in our discretion, may make purchases and sales of
the Preferred Securities and, in arranging for sales, over-allot. You agree that
until termination of this Agreement, you will not make purchases or sales of any
Preferred Securities except (a) pursuant to this Agreement, (b) purchases
authorized by us, or (c) in the ordinary course of business as broker or agent
for a customer pursuant to an unsolicited order.
6. Additional copies of the Prospectus will be supplied to you in
reasonable quantity upon request.
34
7. The Preferred Securities are offered by us for delivery when, as,
and if sold and accepted by the Underwriters and subject to the terms stated
herein and in the Prospectus, to our right to vary the concession and terms of
the offering after their release for public sale, to the approval of counsel as
to legal matters and to withdrawal, cancellation or modification of the offer
without notice.
8. You represent that you are a member in good standing of the NASD or,
if a foreign dealer, that you will conform to the Conduct Rules of the NASD in
making sales in the United States. You represent that you will comply with the
"Free-Riding and Withholding" interpretation (IM-2110-1) of the Board of
Governors of the NASD. You are not authorized to give any information or make
any representations other than as contained in the Prospectus, or to act as
agent for us. Nothing will constitute the Selling Group as an association or
other separate entity or partners with the Underwriters, with us, or with each
other, but you will be responsible for your share of any liability or expense
based on any claim to the contrary. Neither we nor any Underwriter will be under
any liability to you, except for obligations expressly assumed in this Agreement
and any liabilities under the Securities Act of 1933, as amended. No obligations
on our part will be implied or inferred herefrom.
9. Neither we nor any of the other Underwriters will have any
responsibility with respect to the right of any dealer to sell the Preferred
Securities in any jurisdiction, notwithstanding any information that we may
furnish in that connection. Upon application to us, you will be informed as to
the states in which we have been advised by counsel that the Preferred
Securities have been qualified for sale or are exempt under the respective Blue
Sky or securities laws of such states. You agree that you will not offer or sell
such Preferred Securities in violation of any applicable law including, but not
limited to, the Blue Sky or securities laws of any state or jurisdiction in
which such Preferred Securities are offered or sold by you.
10. This Agreement will be governed and construed in accordance with
the laws of the State of Florida.
35
If you desire to become a member of the Selling Group, please advise us
to that effect immediately by facsimile transmission _____________, attention
________________) and sign and return the enclosed copy of this letter
to_____________________________________.
Very truly yours,
XXXXXXX X. XXXXX & CO.
By:
----------------------------------------
Name:
Title:
XXXX, XXXX & CO., INC.
By:
----------------------------------------
Name:
Title:
Confirmed as of the above date:
---------------------------------
(Firm Name)
---------------------------------
(Street Address)
---------------------------------
(City, State and Zip Code)
By:
------------------------------
---------------------------------
Title:
36
EXHIBIT C
The opinion of special counsel to the Company to be delivered pursuant to
Section 5(b)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida, with requisite corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and is registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended. Each of
the Company's subsidiaries is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation, with
requisite corporate power and authority to own, lease and operate its respective
properties and conduct its business as described in the Registration Statement.
The Bank is a Florida chartered commercial bank duly organized, validly existing
and in good standing under the laws of the State of Florida.
2. The Company and each subsidiary are duly qualified to transact business
as foreign corporations under the corporation laws of each jurisdiction in which
the Company or such subsidiary, as the case may be, owns or leases property of a
nature, has an office, or transacts business of a type, that would make such
qualification necessary, except where the failure to so qualify would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
3. The deposit accounts of the Bank are insured by either the Savings
Association Insurance Fund or the Bank Insurance Fund of the FDIC up to the
maximum amount allowable by law and, to such counsel's knowledge, no proceedings
for the termination or revocation of such membership or insurance are pending or
threatened.
4. All of the issued and outstanding shares of capital stock of each of
the Company's subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable and, to such counsel's knowledge, are owned by
the Company or the Bank, as the case may be, free and clear of any security
interests, liens, pledges, claims or other encumbrances.
5. The authorized and outstanding capital stock of the Company at March
31, 1997 is as set forth in the Prospectus under the heading "Capitalization".
6. The Company and the Trust each has full corporate power and authority
to execute, deliver, and perform the Underwriting Agreement and to issue, sell,
and deliver the Preferred Securities to be sold by it to the Underwriters as
provided therein; the Underwriting Agreement has been duly authorized, executed
and delivered by the Company and the Trust, and constitutes a legal, valid, and
binding obligation of each of the Company and the Trust and is enforceable
against each of the Company and the Trust in accordance with its terms, except
as enforceability of the Underwriting Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting creditors'
rights generally, and by equitable principles limiting the right to specific
performance or other equitable relief and except as the obligations of the
Company under the indemnification and contribution provisions of Section 6 of
the Underwriting Agreement may be limited by laws or unenforceable as against
public policy, as to which no opinion is expressed, and an implied covenant of
good faith and fair dealing.
37
7. The Trust Agreement has been duly authorized, executed and delivered by
the Company, and is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent conveyance or similar
laws relating to or affecting creditors' rights generally, general equity
principles (whether considered in a proceeding in equity or at law).
8. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights generally,
general equity principles (whether considered in a proceeding in equity or at
law).
9. The Expense Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent conveyance or similar
laws relating to or affecting creditors' rights generally, general equity
principles (whether considered in a proceeding in equity or at law).
10. The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act, and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally, general equity principles (whether considered in a
proceeding in equity or at law).
11. The Subordinated Debentures have been duly authorized, executed and
delivered by the Company and when duly authenticated in accordance with the
Indenture and delivered and paid for in accordance with the Debenture
Subscription Agreement, will be valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally, general equity principles (whether considered in a
proceeding in equity or at law).
12. Neither the Company nor the Trust is an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in
Investment Company Act of 1940, as amended.
13. The statements set forth in the Registration Statement under the
captions "Regulation and Supervision", "Description of Preferred Securities,"
"Description of Junior Subordinated Debentures," "Description of Guarantee" and
"Relationship Among the Preferred Securities, the Junior Subordinated Debentures
and the Guarantee," insofar as they purport to describe the provisions of the
laws referred to therein, fairly summarize the legal matters described therein.
38
14. The statements of law or legal conclusions and opinions set forth in
the Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
15. The Registration Statement was declared effective under the Securities
Act as of the date and time specified in such order, any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b) and, to such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
16. The Registration Statement (including the Rule 430A Information, if
applicable) and the Prospectus and any amendment or supplement thereto (except
for the financial statements and other financial and statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion),
as of their respective effective or issue dates, comply or complied as to form
in all material respects to the applicable requirements of the 1933 Act and the
1933 Act Regulations.
17. The documents incorporated by reference in the Prospectus (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion,
and except to the extent that any statement therein is modified or superseded in
the Prospectus), as of the dates they were filed with the Commission, complied
as to form in all material respects to the applicable requirements of the 1934
Act and the 1934 Act Regulations.
18. Such counsel knows of no legal or governmental proceedings pending to
which the Company or any subsidiary is a party or of which any property of the
Company or any subsidiary is the subject which are required to be disclosed in
the Registration Statement or which would affect the consummation of the
transactions contemplated in the Underwriting Agreement, the Indenture or the
Preferred Securities; and such counsel knows of no such proceedings which are
threatened or contemplated by governmental authorities or threatened by others.
19. Such counsel knows of no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described in the
Registration Statement or to be filed as exhibits thereto other than those
described therein or filed or incorporated by reference as exhibits thereto, and
such instruments as are summarized in the Registration Statement are fairly
summarized in all material respects.
20. No approval, authorization, consent, registration, qualification or
other order of any public board or body is required in connection with the
execution and delivery of the Underwriting Agreement, the Trust Agreement, the
Guarantee Agreement, and the Indenture or the issuance and sale of the Preferred
Securities or the consummation by the Company of the other transactions
contemplated by the Underwriting Agreement, the Trust Agreement, the Guarantee
Agreement, or the Indenture, except such as have been obtained under the
Securities Act, the Exchange Act and the Trust Indenture Act or such as may be
required under the blue sky or securities laws of various states in connection
with the offering and sale of the Preferred Securities.
21. To the best of such counsel's knowledge, the Company and each of its
subsidiaries, including the Bank, each has all material licenses, permits and
other governmental authorizations currently required for the conduct of its
business as presently conducted.
39
22. The execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, and the Indenture, the issue and sale of the
Preferred Securities and the Subordinated Debentures, the compliance by the
Company with the provisions of the Preferred Securities, the Subordinated
Debentures, the Indenture and the Underwriting Agreement and the consummation of
the transactions therein contemplated will not conflict with or constitute a
breach of, or default under, the articles of incorporation or by-laws of the
Company or any subsidiary or a breach or default under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument known to such counsel
to which either the Company or any subsidiary is a party or by which any of them
or any of their respective properties may be bound except for such breaches as
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries considered as one enterprise, nor will such action
result in a violation on the part of the Company or any subsidiary of any
applicable law or regulation or of any administrative, regulatory or court
decree known to such counsel.
23. The Company has full corporate power and authority to enter into the
Merger Agreement and to effect the transactions contemplated by the Merger
Agreement, and the Merger Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid, legal and binding obligation
of the Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally and by equitable principles limiting the right to specific performance
or other equitable relief; the execution, delivery and performance of the Merger
Agreement and the consummation of the transactions therein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule or regulation, any agreement or
instrument known to such counsel to which the Company or any subsidiary is a
party or by which it is bound or to which any of their respective property is
subject, the Company's or any subsidiary's charter or bylaws, or any statute,
order or decree known to such counsel of any court or governmental agency or
body having jurisdiction over the Company, any subsidiary, or any of their
respective properties; and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for the
execution, delivery and performance of the Merger Agreement or for the
consummation of the transactions contemplated thereby, except such as may be
required under the 1933 Act or state securities laws or regulatory approvals
contemplated by the Merger Agreement.
24. The Merger Agreement has been duly authorized by the Company in a
manner that makes inapplicable the provisions of Sections 607. 0901 and 607.
0902 of the Florida Business Corporation Act as such provisions relate to the
Merger Agreement and the transactions contemplated thereby.
25. Counsel will supplementally provide a written statement that such
counsel has participated in the preparation of the Registration Statement and
Prospectus and has reviewed the documents incorporated by reference in the
Prospectus and no facts have come to the attention of such counsel to lead it to
believe (a) that the Registration Statement (including the Rule 430A
Information, if applicable) or any amendment thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or (b) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
40
therefrom, as to which such counsel need express no opinion), at the time the
Prospectus was issued, or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (c) that the documents
incorporated by reference in the Prospectus (except for the financial statements
and other financial or statistical data contained therein or omitted therefrom,
as to which such counsel need express no opinion, and except to the extent that
any statement therein is modified or superceded in the Prospectus or any
subsequently filed document which is incorporated by reference into the
Prospectus), as of the dates they were filed with the Commission, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
5
41
EXHIBIT D
The opinion of counsel, as special Delaware counsel to the Company and the Trust
to be delivered pursuant to Section 5(b)(iii) of the Underwriting Agreement
shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801 et seq. (the "Delaware Act"), and all filings required under the
laws of the State of Delaware with respect to the creation and valid existence
of the Trust as a business trust have been made.
2. Under the Delaware Act and the Trust Agreement, the Trust has the trust
power and authority to own its property and to conduct its business, all as
described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Property Trustee and the Delaware Trustee, and is enforceable
against the Company and the Trustees, in accordance with its terms.
4. Under the Delaware Act and the Trust Agreement, the Trust has the trust
power and authority to execute and deliver, and to perform its obligations
under, the Underwriting Agreement and to issue and perform its obligations under
the Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, when issued against payment
therefor as set forth in the Underwriting Agreement will be, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust and are
entitled to the benefits of the Trust Agreement. The Holders, as beneficial
owners of the Trust, will be entitled to the same limitations of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Holders may be obligated pursuant to the Trust Agreement, (i) to provide
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Preferred Securities Certificates
and the issuance of replacement Preferred Securities Certificates, and (ii) to
provide security or indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under the Trust
Agreement.
7. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and Common Securities is not subject to preemptive rights.
8. The Common Securities have been duly authorized by the Trust Agreement
and are duly and validly issued undivided beneficial interests in the assets of
the Trust and are entitled to the benefits of the Trust Agreement.
1
42
9. The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
2
43
EXHIBIT E
The opinion of counsel to Trust Company and Delaware Trustee to be delivered
pursuant to Section 5(b)(ii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware.
2. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to execute
and deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly
executed and delivered by the Indenture Trustee and the Guarantee Trustee,
respectively, and constitutes a legal, valid and binding obligation of the
Indenture Trustee and the Guarantee Trustee, respectively, enforceable against
the Indenture Trustee and the Guarantee Trustee, respectively, in accordance
with its respective terms, except that certain payment obligations may be
enforceable solely against the assets of the Trust and except that such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation, fraudulent conveyance and transfer or other similar
laws affecting the enforcement of creditors' rights generally, and by general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability, is considered in a proceeding in equity or at law), and by the
affect of applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
6. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
