EXHIBIT 1
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AMERICAN BANCORPORATION
(an Ohio corporation); and
AMERICAN BANCORPORATION CAPITAL TRUST I
(a Delaware statutory business trust)
1,100,000
_____% Cumulative Trust
Preferred Securities
(Liquidation Amount $10 Per Cumulative Preferred Security)
UNDERWRITING AGREEMENT
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April 1, 1998
XXXX XXXXX XXXX XXXXXX, INCORPORATED
0000 Xxxxxxxxxxxx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxxxx, Managing Director
Ladies and Gentlemen:
American Bancorporation Capital Trust I (the "Trust"), a statutory
business trust organized under the Delaware Business Trust Act, 12 Del. C.
xx.xx. 3801 et seq (the "Delaware Act"), confirms its agreement with you, Xxxx
Xxxxx Xxxx Xxxxxx, Incorporated ("Xxxx Xxxxx" or the "Underwriter"), with
respect to the issuance and sale by the Trust, and the purchase by the
Underwriter of 1,100,000 ___% Cumulative Trust Preferred Securities (liquidation
amount $10 per preferred security) and the grant by the Trust to the Underwriter
of the option described in Section 2(b) hereof to purchase all or any part of
165,000 additional Preferred Securities to cover overallotments, if any. The
aforesaid 1,100,000 preferred securities (the "Initial Preferred Securities") to
be purchased by the Underwriter and all or any part of the 165,000 preferred
securities subject to the option described in Section 2(b) hereof (the "Optional
Preferred Securities") are hereinafter called, collectively, the "Preferred
Securities." The Preferred Securities are more fully described in the Prospectus
(as defined below).
The Preferred Securities will be guaranteed by American Bancorporation
(the "Company"), to the extent set forth in the Prospectus (as defined below),
with respect to distributions and amounts payable upon liquidation or redemption
(the "Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Guarantee Agreement") to be dated as of Closing Time (as defined below)
executed and delivered by the Company and The Bank of New York (the "Guarantee
Trustee"), a New York banking corporation, not in its individual capacity but
solely as trustee for the benefit of the holders from time
to time of the Preferred Securities. The Company and the Trust each understand
that the Underwriter proposes to make a public offering of the Preferred
Securities as soon as it deems advisable after this Agreement has been executed
and delivered, and the Trust Agreement (as defined herein), the Indenture (as
defined herein), and the Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). 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 its common securities (the "Common
Securities") and will be used by the Trust to purchase the _____% Junior
Subordinated Deferrable Interest Debentures due 2028 (the "Junior Subordinated
Debentures") issued by the Company. The Company will guarantee the full payment
of any costs, expenses or liabilities of the Trust, other than obligations of
the Trust to pay to the holders of Preferred Securities the amounts due to such
holders, pursuant to the Agreement as to Expenses and Liabilities dated as of
the Closing Time between the Trust and the Company ("Expense Agreement"). The
Preferred Securities and the Common Securities will be issued pursuant to the
Amended and Restated Declaration of Trust of the Trust, to be dated as of
Closing Time (the "Trust Agreement"), among the Company, as Sponsor, The Bank of
New York, as property trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee"), and Xxxxxx X. XxXxxxx,
Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxx, as administrative trustees (the
"Administrative Trustees" and together with the Property Trustee and the
Delaware Trustee, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Junior
Subordinated Debentures will be issued pursuant to an Indenture, to be dated as
of Closing Time (the "Indenture"), between the Company and The Bank of New York,
as debenture trustee (the "Debenture Trustee"). The Preferred Securities, the
Guarantee and the Junior Subordinated Debentures are collectively referred to
herein as the "Securities." The Trust and the Company are collectively referred
to herein as the "Offerors." The Indenture, the Trust Agreement and this
Agreement are collectively referred to herein as the "Operative Documents."
Capitalized terms used herein without definition have the respective meanings
specified in the Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-2 (Nos.
333-_________ and 333-_______-01) covering the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the " 1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company and the Trust have elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as
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"Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred
to as "Rule 434 Information." Each prospectus used before such registration
statement became effective, and any prospectus that omitted, as applicable, the
Rule 430A Information or the Rule 434 Information that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits thereto and schedules thereto, if any, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement" and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriter
for use in connection with the offering of the Preferred Securities is herein
called the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall
refer to the preliminary prospectus dated March __, 1998 together with the Term
Sheet and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
The Company understands that the Underwriter proposes to make a public
offering of the Preferred Securities (the "Offering") as soon as possible after
the Registration Statement becomes effective. The Underwriter 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 the form of a
master selected dealer agreement or similar form of dealer agreement, which the
Underwriter has entered into with such broker dealers.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to the
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof and as of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agree with the Underwriter as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-2 under the 1933 Act and each
of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any
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request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time (and, if
any Optional Preferred Securities are purchased, at the Date of
Delivery), the Registration Statement, the Rule 462(b) Registration
Statement, if any, and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time (and, if any Optional
Preferred Securities are purchased, at the Date of Delivery), included
or will include an untrue statement of a material fact or omitted or
will 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. If Rule 434 is used, the Company will comply
with the requirements of Rule 434 and the Prospectus shall not be
"materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it became
effective. The representations and warranties in this subsection shall
not apply (A) to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Trust or the Company in writing by any
Underwriter through Xxxx Xxxxx expressly for use in the Registration
Statement or Prospectus and (B) that part of the Registration Statement
which shall constitute the Statements of Eligibility (Forms T-1) under
the 1939 Act.
Each preliminary prospectus and the Prospectus filed
as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the
Prospectus delivered to the Underwriter for use in connection with this
Offering was substantively identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(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
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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) Independent Accountants. The accountants who certified
the financial statements included or incorporated by reference in the
Prospectus are independent public accountants within the meaning of the
1933 Act and the rules and regulations of the Commission under the 1933
Act Regulations.
(iv) Financial Statements. The consolidated historical
financial statements, together with the related schedules and notes,
included in the Prospectus present fairly, in all material respects,
the consolidated financial position of the Company and its consolidated
subsidiaries at the dates indicated, and the statements of income,
changes in stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") in the United States applied on a
consistent basis throughout the periods involved, except as disclosed
in the notes to such financial statements; the supporting schedules, if
any, included in the Prospectus present fairly, in all material
respects, the information required to be stated therein; and the
summary financial data included in the Prospectus present fairly, in
all material respects, the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Prospectus.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus,
except as otherwise stated therein or contemplated thereby, there has
not been (A) any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Trust, or of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) any transaction entered into by the
Trust, the Company or any of its subsidiaries, other than in the
ordinary course of business, that is material to the Trust, or 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 any class of its capital stock, other than regular quarterly
dividends on the Company's common stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Ohio and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under each of the Operative Documents to which it
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is a party; the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended.
(vii) Good Standing of the Subsidiaries. Wheeling National
Bank (the "Bank") is a national bank duly organized, validly existing
and in good standing under the laws of the United States with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business; the deposit accounts of the Bank
are insured by the Bank Insurance Fund of the Federal Deposit Insurance
Corporation ("FDIC") up to the maximum allowable limits thereof; each
of American Bancservices, Inc., American Mortgages, Inc., American
Bancleasing, Inc., and American Bancdata Corporation (together with the
Bank, the "Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Ohio and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus .
(viii) No Other Significant Subsidiaries. There are no
"significant subsidiaries" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) other than the Subsidiaries. The
subsidiaries of the Company other than the Subsidiaries, considered in
the aggregate as a single subsidiary, do not constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
(ix) Foreign Qualifications. The Company and the Subsidiaries
are each duly qualified as a foreign corporation to transact business
and are each in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect (as defined in Section l(a)(iv) hereof).
(x) Capital Stock Duly Authorized and Validly Issued. All of
the issued and outstanding capital stock of the Company has been duly
authorized and validly issued and is fully paid and nonassessable and
none of the capital stock of the Company was issued in violation of the
preemptive rights of any shareholder of the Company; all of the issued
and outstanding capital stock of the Subsidiaries has been duly
authorized and validly issued, is fully paid and nonassessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right; and none of such outstanding shares of capital stock
of the Subsidiaries was issued in violation of any preemptive or
similar rights arising by operation of law, or under the charter or
by-laws of the Company or the Subsidiaries or under any agreement to
which the Company or any Subsidiary is a party.
(xi) Capitalization. The authorized, issued and outstanding
capital stock of the Company as of December 31, 1997 is as set forth in
the Prospectus under
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"Capitalization," and there have not been any subsequent issuances of
capital stock of the Company except for subsequent issuances, if any,
pursuant to any dividend reinvestment plan, reservations, agreements,
conversions, stock dividends or employee or director benefit plans.
(xii) Good Standing of the Trust. The Trust has been duly
created and is validly existing in good standing as a business trust
under the Delaware Act with the power and authority to own property and
the Trust has conducted no business to date, and it will conduct no
business in the future that would be inconsistent with the description
of the Trust set forth in the Prospectus and to enter into and perform
its obligations under the Operative Documents, as applicable, and the
Preferred Securities; the Trust is not a party to or otherwise bound by
any material agreement other than those described in the Prospectus;
and the Trust is, and will be, under current law, classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
(xiii) Authorization of Common Securities. The Common
Securities have been duly authorized for issuance by the Trust pursuant
to the Trust Agreement and, when certificates therefor have been
issued, executed and authenticated in accordance with the Trust
Agreement and delivered by the Trust to the Company against payment
therefor in accordance with the Common Securities Subscription
Agreement, will be validly issued and fully paid and nonassessable
undivided beneficial ownership interests in the assets of the Trust.
The issuance of the Common Securities is not subject to preemptive or
other similar rights, and, at the Closing Time, all of the issued and
outstanding Common Securities of the Trust will be directly owned by
the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
(xiv) Authorization of Preferred Securities. At the Closing
Time, the Preferred Securities will have been duly authorized for
issuance by the Trust pursuant to the Trust Agreement, and the
Preferred Securities, when certificates therefore have been issued,
executed and authenticated in accordance with the Trust Agreement and
delivered against payment therefor as provided herein, will be validly
issued and fully paid and nonassessable undivided beneficial ownership
interests in the assets of the Trust and will conform to the
description thereof in the Prospectus. The issuance of the Preferred
Securities will not be subject to preemptive or other similar rights.
(xv) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Offerors.
(xvi) Authorization of Trust Agreement. The Trust Agreement
has been qualified under the 1939 Act and has been duly authorized by
the Company and, at the Closing Time, will have been duly executed and
delivered by the Company and
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the Trustees, and assuming due authorization, execution and delivery of
the Trust Agreement by the Trustees, the Trust Agreement will, at the
Closing Time, be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and
(c) any public policy underlying applicable federal or state laws
(collectively, the "Enforceability Exceptions").
(xvii) Authorization of Guarantee and Expense Agreement. The
Guarantee has been qualified under the 1939 Act and has been duly
authorized by the Company; the Expense Agreement has been duly
authorized, executed and delivered by the Offerors; at the Closing
Time, each of the Guarantee and the Expense Agreement will have been
duly executed and delivered by the Company and will constitute a valid
and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforceability
may be limited by the Enforceability Exceptions; and the Guarantee and
the Expense Agreement will conform in all material respects to the
description thereof in the Prospectus.
(xviii) Authorization of Indenture. The Indenture has been
qualified under the 1939 Act and has been duly authorized by the
Company and, at the Closing Time, will have been duly executed and
delivered by the Company and will constitute a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforceability may be limited
by the Enforceability Exceptions.
(xix) Authorization of Debentures. The Junior Subordinated
Debentures have been duly authorized by the Company; at the Closing
Time, the Junior Subordinated Debentures, will have been duly executed
by the Company and, when authenticated in the manner provided for in
the Indenture and delivered by the Company to the Trust against payment
therefor as described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforceability
may be limited by the Enforceability Exceptions; and the Junior
Subordinated Debentures will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to the descriptions thereof in the Prospectus.
(xx) Authorization of Trustees. Each of the Administrative
Trustees of the Trust is an officer of the Company and has been duly
authorized by the Company to execute and deliver the Trust Agreement.
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(xxi) Trust and Company Not Investment Company. Neither the
Trust nor the Company is, and immediately following consummation of the
transactions contemplated hereby and the application of the net
proceeds as described in the Prospectus neither the Trust nor the
Company will be, an "investment company" or a company "controlled" by
an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Accuracy of Disclosure. The Operative Documents
conform in all material respects to the descriptions thereof contained
in the Prospectus.
(xxiii) Absence of Defaults and Conflicts. The Trust is not
in violation of the trust certificate of the Trust filed with the State
of Delaware (the "Trust Certificate") or the Trust Agreement, and
neither the Company nor any Subsidiary is in violation of its charter
or by-laws; none of the Trust, the Company or any Subsidiary is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which it is a party or by which it or any of them may
be bound, or to which any of its property or assets is subject
(collectively, "Agreements and Instruments") except for such defaults
under Agreements and Instruments that would not result in a Material
Adverse Effect; and the execution, delivery and performance of the
Operative Documents by the Trust or the Company, as the case may be,
the issuance, sale and delivery of the Preferred Securities, the Junior
Subordinated Debentures and the Guarantee, the consummation of the
transactions contemplated by the Operative Documents and compliance by
the Offerors with the terms of the Operative Documents to which they
are a party have been duly authorized by all necessary corporate action
on the part of the Company and, at the Closing Time, will have been
duly authorized by all necessary action on the part of the Trust and do
not and will not, whether with or without the giving of notice or
passage of time or both, violate, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any security interest, mortgage,
pledge, lien, charge, encumbrance, claim or equitable right upon any
property or assets of the Trust, the Company or any of its subsidiaries
pursuant to any of the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any Subsidiary or the Trust Agreement or the Trust
Certificate, or violation by the Company or any Subsidiary of any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government authority, agency or
instrumentality or court, domestic or foreign, including, without
limitation, the Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation and the Office of the Comptroller
of the Currency ("OCC") having jurisdiction over the Trust, the
Company, the Company's subsidiaries, or their respective properties
(collectively, "Governmental Entities"). As used herein, a
9
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Trust, the Company or any of its subsidiaries.
(xxiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is imminent, which may reasonably be expected to result
in a Material Adverse Effect.
(xxv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any
Governmental Entity now pending, or, to the knowledge of the Trust or
the Company, threatened, against or affecting the Trust or the Company
or any of its subsidiaries, which is not disclosed in the Prospectus
and which in the reasonable judgment of the Trust or the Company might
result in a Material Adverse Effect, or which in the reasonable
judgment of the Company might materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated by the Operative Documents or the performance by the Trust
or the Company of its obligations hereunder or thereunder.
(xxvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any Governmental Entity, other than those
that have been made or obtained, is necessary or required for the
performance by the Trust or the Company of their obligations under the
Operative Documents, as applicable, or the consummation by the Trust
and the Company of the transactions contemplated by the Operative
Documents.
(xxvii) Possession of Licenses and Permits. The Trust, the
Company, the Bank and each Subsidiary possess such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate Governmental
Entities necessary to conduct the business now operated by them; the
Trust, the Company, the Bank and the Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate
have a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and neither the Trust, the Company, the Bank nor any Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, in the reasonable judgment of the Company, is likely to
result in a Material Adverse Effect.
(xxviii) No Other Agreements. Other than such agreements,
contracts and other documents as are described in the Prospectus or
otherwise filed as exhibits to the Company's annual report on Form 10-K
or quarterly reports on Form 10-Q or
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current reports on Form 8-K incorporated by reference in the
Prospectus, there are no agreements, contracts or documents of a
character described in Item 601 of Regulation S-K of the Commission to
which the Company or the Bank is a party; the Company and the Bank have
no agreement or understanding with any entity concerning the future
acquisition of a controlling interest in the Company or the Bank 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.
(xxix) Title to Property. The Company and the Subsidiaries
have good and marketable title to all of their respective real and
personal properties, in each case free and clear of all liens,
encumbrances and defects, except as stated in the Prospectus, or such
as do not materially affect the value of such properties in the
aggregate to the Company and the Subsidiaries considered as one
enterprise; and all of the leases and sub-leases material to the
business of the Trust, and to the Company and its Subsidiaries,
considered as one enterprise, and under which either of the Offerors or
any Subsidiary holds properties described in the Prospectus, are in
full force and effect and neither the Offerors nor such subsidiaries
have any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Offerors or such
Subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of such entity to the continued
possession of the leased or subleased premises under any such lease or
sublease, which individually or in the aggregate might result in a
Material Adverse Effect.
(xxx) Registration Rights. 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.
(xxxi) Patent and Proprietary Rights. Except as disclosed in
the Prospectus, the Company, the Bank and the Subsidiaries 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, or the 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 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, or in the
earnings, business affairs, assets or business prospects of the Company
and its Subsidiaries considered as one enterprise.
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(xxxii) Payment of Taxes. The Company, the Bank and each
Subsidiary 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 indicated by such returns and no material
deficiency has been asserted with respect thereto by any taxing
authority.
(xxxiii) NASD Filings. The Company has filed with NASD all
documents and notices required by 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 ("Nasdaq Stock Market").
(xxxiv) Compliance with Laws and Regulations. Neither the
Company, the Bank nor any 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 Company, the Bank or
the Subsidiaries.
(xxxv) Regulation M. The Company has not taken and will not
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Preferred Securities.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any of its subsidiaries and delivered to
you or to counsel for the Underwriter shall be deemed a representation and
warranty by the Trust or the Company, as the case may be, to the Underwriter as
to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITER; CLOSING.
(a) Initial Preferred Securities. 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 Underwriter and the Underwriter
agrees to purchase from the Trust, at the purchase price of $10 per Initial
Preferred Security, the Initial Preferred Securities. As compensation to the
Underwriter for its commitments hereunder and in view of the fact that the
proceeds of the sale of the Preferred Securities will be used to purchase the
Junior Subordinated Debentures, the Company hereby agrees to pay at the Closing
Time and at any Date of Delivery to the Underwriter a commission of $ per
Preferred Security purchased by the Underwriter by wire transfer of immediately
available funds.
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(b) Optional Preferred Securities. 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
Underwriter, to purchase up to 165,000 Optional Preferred Securities at the
price per share set forth in the immediately preceding paragraph. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part, but only once, solely for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Preferred Securities, upon notice by the Underwriter
to the Trust setting forth the number of Optional Preferred Securities as to
which the Underwriter is exercising the option and the time and date of payment
and delivery for such Optional Preferred Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the Underwriter, but
shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for the Initial Preferred Securities shall be made at the offices
of Xxxxxxx & Xxxx in Washington, D.C., or at such other place as shall be agreed
upon by the Underwriter and the Offerors, at 9:00 a.m., Eastern Standard time,
on the third full business day after the effective date of the Registration
Statement, or such other time not later than seven (7) business days after such
date as shall be agreed upon by the Underwriter and the Offerors (such time and
date of payment and delivery being herein called the "Closing Time").
In addition, in the event that any or all of the Optional Preferred
Securities are purchased by the Underwriter, payment of the purchase price for,
and delivery of certificates for, such Optional Preferred Securities shall be
made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Underwriter and the Offerors on the Date of Delivery as specified in
the notice from the Underwriter to the Offerors.
Payment shall be made to the Trust by wire transfer of immediately
available funds, to the order of the Trust, to a bank designated by the Company,
against delivery to the Underwriter of certificates for the Preferred Securities
to be purchased by it.
(d) Denominations; Registration. 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 ("DTC") or in such names as the
Underwriter may request in writing at least two business days before the Closing
Time 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 in Washington, D.C. for examination by the Underwriter
and counsel to the Underwriter 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.
13
SECTION 3. COVENANTS OF THE OFFERORS.
The Offerors jointly and severally covenant with the Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company and the Trust, subject to Section 3(b) hereof, will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Underwriter immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall 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 by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Preferred Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company and the Trust will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company and the
Trust will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
Underwriter notice of their intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act or otherwise, will furnish the Underwriter with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriter and counsel for the Underwriter, without charge,
two copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and copies of all consents and certificates of experts, and
will also deliver to the Underwriter, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits). The copies of the Registration Statement and each amendment
thereto furnished to the Underwriter will be substantively identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
14
(d) Delivery of Prospectuses. The Offerors, as promptly as possible,
will furnish to the Underwriter, without charge, such number of copies of the
preliminary prospectus, the final Prospectus and any amendments and supplements
thereto and documents incorporated by reference therein as the Underwriter may
reasonably request, and the Company and the Trust hereby consent to the use of
such copies for purposes permitted by the 1933 Act. The Company will furnish to
the Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the Securities Exchange Act of
1934 (the "1934 Act"), such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriter will be
substantively identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the
Trust will comply with the 1933 Act and the 1933 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Preferred
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriter or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
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
opinion of 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 and the Trust will
promptly prepare and file with the Commission, subject to Section 3(b) hereof,
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriter such number
of copies of such amendment or supplement as the Underwriter may reasonably
request.
(f) Blue Sky Qualifications. The Company and the Trust will each use
its best efforts, in cooperation with the Underwriter, to qualify the Preferred
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Underwriter may reasonably designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that neither the Company nor
the Trust shall 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. In each jurisdiction in which the Preferred Securities have been so
qualified, the Company and the Trust will file such statements and reports as
may be required by the laws of such jurisdiction to continue such qualification
in
15
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Notice and Effect of Material Events. The Offerors will immediately
notify the Underwriter, and confirm such notice in writing, of (x) any filing
made by the Offerors of information relating to the offering of the Preferred
Securities with any securities exchange or any other regulatory body in the
United States, and (y) prior to the completion of the distribution of the
Preferred Securities by the Underwriter as evidenced by a notice in writing from
the Underwriter to the Offerors, any Material Adverse Effect, which (i) makes
any statement in the Prospectus false or misleading or (ii) is not disclosed in
the Prospectus. In such event or if during such time any event shall occur as a
result of which it is necessary, in the reasonable opinion of the Company, its
counsel or the Underwriter or counsel to the Underwriter, to amend or supplement
the final Prospectus in order that the final Prospectus not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the circumstances
then existing, the Company will forthwith amend or supplement the final
Prospectus by preparing and furnishing to the Underwriter an amendment or
amendments of, or a supplement or supplements to, the final Prospectus (in form
and substance satisfactory in the reasonable opinion of counsel for the
Underwriter) so that, as so amended or supplemented, the final 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, in the light of the
circumstances existing at the time it is delivered to a Subsequent Purchaser,
not misleading.
(i) DTC. The Offerors will cooperate with the Underwriter and use their
best efforts to permit the Preferred Securities to be eligible for clearance and
settlement through the facilities of DTC.
(j) Use of Proceeds. The Trust will use the proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds." The Company will use the net proceeds received by it from the
sale of the Junior Subordinated Debentures, in the manners specified in the
Prospectus under "Use of Proceeds."
(k) Listing. The Company will use its best efforts to effect the
listing of the Preferred Securities on the Nasdaq Stock Market. If the Junior
Subordinated Debentures are distributed on the occurrence of a Tax Event (as
defined in the Prospectus), the Company will use its best efforts to effect the
listing of the Junior Subordinated Debentures on the Nasdaq Stock Market or such
other exchange where the Preferred Securities are listed.
16
(l) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectus, neither the Company nor the Trust will, without the
prior written consent of Xxxx Xxxxx, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any Preferred Securities or Junior Subordinated
Debentures (or any equity or debt securities substantially similar to the
Preferred Securities or Junior Subordinated Debentures, respectively), or any
securities convertible into or exercisable or exchangeable for Preferred
Securities or Junior Subordinated Debentures (or any equity or debt securities
substantially similar to the Preferred Securities or Junior Subordinated
Debenture, respectively) or file any registration statement under the 1933 Act
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of Preferred Securities or
Junior Subordinated Debentures (or any equity or debt securities substantially
similar to the Preferred Securities or Junior Subordinated Debentures,
respectively), whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Preferred Securities or Junior
Subordinated Debentures (or any equity or debt securities substantially similar
to the Preferred Securities or Junior Subordinated Debentures, respectively) or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to the Preferred Securities or Junior Subordinated Debentures to be sold
hereunder.
(m) Reporting Requirements. The Company and the Trust, during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(n) Furnish Reports. For and during the period ending three years after
the effective date of the Registration Statement, the Company will furnish to
the Underwriter copies of all reports and other communications (financial or
otherwise) furnished by the Company to its securityholders generally and copies
of any reports or financial statements furnished to or filed by the Company with
the Commission or any national securities exchange on which any class of
securities of the Company may be listed.
SECTION 4. PAYMENT OF EXPENSES.
(a) Expenses. The Company, as borrower under the Junior Subordinated
Debentures, and pursuant to the Expense Agreement, will pay all expenses
incident to the performance of its, and the Trust's, obligations under this
Agreement, including (i) the preparation, printing and any filing of the
Registration Statement (including financial statements and any schedules or
exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the preparation, printing and delivery to
the Underwriter of this Agreement, the Operative Documents and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the
17
Preferred Securities, (iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities to the Underwriter, including any
stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance, or delivery of the Preferred Securities to the Underwriter, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the fees and expenses of any trustee appointed under any of the
Operative Documents, including the fees and disbursements of counsel for such
trustees in connection with the Operative Documents, (vi) fifty percent of the
fees up to $50,000 of Elias, Matz, Xxxxxxx & Xxxxxxx LLP, counsel for the
Underwriter, and for any additional fees of such firm up to an additional
$15,000 to the extent incurred, plus the out-of-pocket expenses and
disbursements incurred by such firm; (vii) the qualification of the Preferred
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriter in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, if any, (viii)
the printing and delivery to the Underwriter of copies of each preliminary
prospectus, any Term Sheets and of the Prospectus and any amendments or
supplements thereto, if any, (ix) the fees and expenses of any transfer agent or
registrar for the Preferred Securities, (x) the filing fees incident to the
review by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Preferred Securities, (xi) the fees and expenses
incurred in connection with the listing of the Preferred Securities and, if
applicable, the Junior Subordinated Debentures on the Nasdaq Stock Market, and
(xii) the cost and charges of qualifying the Preferred Securities with DTC.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriter for all of their reasonable,
actual, accountable out-of-pocket expenses, including the reasonable fees and
disbursements of Elias, Matz, Xxxxxxx & Xxxxxxx LLP, counsel for the
Underwriter, up to the limit specified in Section 4(a)(vii) hereof.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS.
The obligations of the Underwriter hereunder are subject to the
accuracy of the representations and warranties of the Offerors contained in
Section 1 hereof or in certificates of any Trustee of the Trust, officer of the
Company or any of its subsidiaries delivered pursuant to the provisions hereof,
to the performance by the Offerors of their obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriter. A
18
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 430(a) or, if the Company has elected
to rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b))
(b) Opinion of Outside Counsel for Offerors. At the Closing Time, the
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of Xxxxxxx & Xxxx, counsel for the Offerors, in form and substance
reasonably satisfactory to the Underwriter, substantially in the form set forth
in Exhibit A. Such counsel may state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of Trustees of the Trust, officers of the Company or any designated
subsidiary and certificates of public officials. Such counsel may also state
that, insofar as such opinion involves matters of Ohio and West Virginia law,
they have relied, to the extent they deem proper, on local Ohio and West
Virginia counsel acceptable to counsel to for Underwriter.
(c) Opinion of Special Delaware Counsel for Offerors. At the Closing
Time, the Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for
the Offerors, in form and substance reasonably satisfactory to counsel for the
Underwriter, substantially in the form set forth in Exhibit B.
(d) Opinion of Counsel for The Bank of New York. At the Closing Time,
the Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New York,
as Property Trustee under the Trust Agreement, Guarantee Trustee under the
Guarantee Agreement and Debenture Trustee under the Indenture, in form and
substance reasonably satisfactory to counsel for the Underwriter, substantially
in the form set forth in Exhibit C.
(e) Opinion of Special Tax Counsel for the Offerors. At the Closing
Time, the Underwriter shall have received an opinion, dated as of the Closing
Time, of Xxxxxxx & Xxxx, special tax counsel to the Offerors, substantially to
the effect that (i) the Junior Subordinated Debentures will be classified as
indebtedness for United States federal income tax purposes, (ii) the Trust will
be classified as a grantor trust for United States federal income tax purposes,
and (iii) the statements set forth in the Prospectus under the caption "Certain
Federal Income Tax Consequences" constitute, in all material respects, a fair
and accurate summary of the United States federal income tax consequences of the
ownership and disposition of the Preferred Securities under current law. Such
opinion may be conditioned on, among other things, the initial and continuing
accuracy of the facts, financial and other information, covenants and
representations set forth in certificates of officers of the Company and other
documents deemed necessary for such opinion.
19
(f) Opinion of Counsel for the Underwriter. At the Closing Time, the
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of Elias, Matz, Xxxxxxx & Xxxxxxx LLP, counsel for the Underwriter, with
respect to the Preferred Securities, the Operative Documents, the Prospectus and
other related matters as the Underwriter may require. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of Trustees of the Trust,
officers of the Company or the Bank and certificates of public officials.
(g) Certificates. At the Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, and the Underwriter
shall have received a certificate of the Chairman, the Chief Executive Officer,
the President or any Vice President of the Company and of the Chief Financial
Officer of the Company and a certificate of an Administrative Trustee of the
Trust, dated as of the Closing Time, to the effect that, to his or her knowledge
(i) there has been no such material adverse change (ii) the representations and
warranties in Section 1 hereof were true and correct when made and are true and
correct with the same force and effect as though expressly made at and as of the
Closing Time, and (iii) the Offerors have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or prior
to the Closing Time.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Initial Purchaser shall have received from KPMG Peat Marwick, LLP
(the "Accountants") a letter dated such date, in form and substance satisfactory
to the Underwriter, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to Underwriter with respect to the
financial statements and certain financial information included or incorporated
by reference in the Prospectus.
(i) Bring-down Comfort Letter. At the Closing Time, the Underwriter
shall have received from the Accountants a letter dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(j) Approval of Listing. At the Closing Time, the Preferred Securities
shall have been approved for listing on the Nasdaq Stock Market.
(k) Conditions to Purchase of Optional Preferred Securities. In the
event that the Underwriter exercises its option provided in Section 2(b) hereof
to purchase all or any portion of the Optional Preferred Securities, the
representations and warranties of the Company and the Trust contained herein and
the statements in any certificates furnished
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by the Company and any Trustee hereunder shall be true and correct as of the
Date of Delivery and, at the Date of Delivery, the Underwriter shall have
received:
(i) Opinion of Outside Counsel for Offerors. The favorable
opinion of Xxxxxxx & Xxxx, counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriter, dated such Date
of Delivery, relating to the Optional Preferred Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(ii) Opinion of Special Delaware Counsel for Offerors. The
favorable opinion, dated such Date of Delivery, of Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriter, relating to the
Optional Preferred Securities to be purchased on such Date of Delivery
and otherwise to the same effects as the opinion required by Section
5(c) hereof.
(iii) Opinion of Counsel for The Bank of New York. The
favorable opinion, dated such Date of Delivery, of Xxxxx, Xxxxxx &
Xxxxxx, LLP, counsel to The Bank of New York, as Property Trustee under
the Trust Agreement, Guarantee Trustee under the Guarantee Agreement
and Debenture Trustee under the Indenture, in form and substance
satisfactory to counsel for the Underwriter, relating to the Optional
Preferred Securities to be Purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(iv) Opinion of Special Tax Counsel for the Offerors. The
favorable opinion, dated such Date of Delivery, of Xxxxxxx & Xxxx,
special tax counsel to the Offerors, in form and substance satisfactory
to counsel for the Underwriter, relating to the Optional Preferred
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(e) hereof.
(v) Opinion of Counsel for the Underwriter. The favorable
opinion, dated such Date of Delivery, of Elias, Matz, Xxxxxxx & Xxxxxxx
LLP, counsel for the Underwriter, relating to the Optional Preferred
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(f) hereof.
(vi) Certificates. Certificates, dated such Date of Delivery,
of the Chairman, the Chief Executive Officer, the President or any Vice
President of the Company and of the Chief Financial Officer of the
Company and a certificate of an Administrative Trustee of the Trust,
confirming that the certificates delivered at the Closing Time pursuant
to Section 5(g) hereof remain true and correct as of such Date of
Delivery.
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(vii) Bring-down Comfort Letter. A letter from the Accountants
dated such Date of Delivery, in form and substance satisfactory to the
Underwriter, substantially in the same form and substance as the letter
furnished to the Underwriter pursuant to Section 5(i) hereof, except
that the specified date referred to shall be a date not more than five
days prior to such Date of Delivery.
(l) Additional Documents. At the Closing Time, counsel for the
Underwriter shall have been furnished such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Preferred Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties of the
Offerors, or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Offerors in connection with the issuance and sale of
the Preferred Securities as herein contemplated shall be satisfactory in form
and substance to the Underwriter and counsel for the Underwriter.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Offerors at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 hereof
and except that Sections 7 and 8 hereof shall survive any such termination and
remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) Indemnification of Underwriter. The Offerors agree to jointly and
severally indemnify and hold harmless (x) the Underwriter, (y) each person, if
any, who controls the Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act (each such person, a "Control Person") and (z)
the respective partners, directors, officers and employees of the Underwriter or
any Control Person as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment or supplement thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or arising out of any untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
22
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission or
any such alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with the written
consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing for or
defending against any litigation or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission to the extent that any such
expense is not paid under (i) or (ii) above; provided, however, that
this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon
and in conformity with written information furnished to the Offerors by
the Underwriter expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto). The foregoing
indemnity with respect to any untrue statement or alleged untrue
statement contained in or omission or alleged omission from a
preliminary prospectus shall not inure to the benefit of the
Underwriter (or any person controlling such Underwriter) from whom the
person asserting any loss, liability, claim, damage or expense
purchases any of the Preferred Securities which are the subject thereof
if the Company shall sustain the burden of proving that such person was
not sent or given a copy of the Prospectus (or the Prospectus as
amended or supplemented) at or prior to the written confirmation of the
sale of such Securities to such person and the untrue statement
contained in or omission from such preliminary prospectus was corrected
in the Prospectus (or the Prospectus as amended or supplemented) and
the Company has previously furnished copies thereof to such
Underwriter.
(b) Indemnification of Offerors, Directors, Officers and Employees. The
Underwriter agrees to indemnify and hold harmless the Company, its directors,
officers and employees, the Trust, each of the Trustees and each person, if any,
who controls the Trust, any of the Trustees or the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 6(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), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in
23
conformity with written information furnished to the Offerors by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof, and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action or, if it so elects within a reasonable time after
receipt of such notice, to assume the defense of any suit brought to enforce any
such claim, but if it so elects to assume the defense, such defense shall be
conducted by counsel chosen by it and approved by the indemnified parties, which
approval shall not be unreasonably withheld. In the event that an indemnifying
party elects to assume the defense of any such suit and retain such counsel, the
indemnified party or parties shall bear the fees and expenses of any additional
counsel thereafter retained by such indemnified party or parties; provided,
however, that the indemnified party or parties shall have the right to employ
counsel (in addition to local counsel) to represent the indemnified party or
parties who may be subject to liability arising out of any action in respect of
which indemnity may be sought against the indemnifying party if, in the
reasonable judgement of counsel for the indemnified party or parties, there may
be legal defenses available to such indemnified person which are different from
or in addition to those available to such indemnifying person, in which event
the reasonable fees and expenses of appropriate separate counsel shall be borne
by the indemnifying party. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
SECTION 7. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances under which the indemnification provided for in Section 6 hereof
is for any reason held to be
24
unenforceable by an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Offerors on the one hand and the Underwriter on the other hand from the
offering of the Preferred Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Offerors, on the one
hand, and of the Underwriter, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriter on the other hand in connection with the offering of the Preferred
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Preferred Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Underwriter,
bear to the aggregate initial offering price of the Preferred Securities.
The relative fault of the Offerors, on the one hand, and the
Underwriter, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statements of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Preferred Securities purchased by it and distributed to
the public were offered to the public exceeds the amount of any damages which
the Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
25
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and the respective partners, directors, officers and employees of
the Underwriter shall have the same rights to contribution as the Underwriter,
and each officer, director and employee of the Company, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, shall have the same rights to contribution as the
Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or trustees of the Trust
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Trust or the Company, and shall
survive delivery of the Preferred Securities to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) Termination; General. The Underwriter may terminate this Agreement,
by notice to the Offerors, at any time at or prior to the Closing Time (i) if
there has occurred, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Trust or the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis, or any change or
development involving a prospective change in national political, financial or
economic conditions, in each case the effect of which is such as to make it, in
the judgment of the Underwriter, impracticable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred Securities, or
(iii) if trading in any securities of the Company has been suspended or limited
by the Commission, or if trading generally on the American Stock Exchange, the
New York Stock Exchange or the Nasdaq Stock Market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either federal, Ohio or West Virginia authorities.
26
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
6 and 7 hereof shall survive such termination and remain in full force and
effect.
SECTION 10. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriter shall be directed to Xxxx
Xxxxx Xxxx Xxxxxx, Incorporated, 0000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X.
00000, Attention Xxxx X. Xxxxxxx, Managing Director, with a copy to Elias, Matz,
Xxxxxxx & Xxxxxxx LLP, 000 00xx Xxxxxx, XX, Xxxxxxxxxx X.X. 00000, Attention:
Xxxxxx X. Xxxxx, Esq.; notices to the Offerors shall be directed to American
Bancorporation, 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxx Center, Wheeling, West
Virginia, 26003, Attention: Xxxxx X. Xxxxxxxx, with a copy to Xxxxxxx & Xxxx,
0000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx X.X. 00000, Attention: Xxxxx X.
Xxxxxxx, Esq.
SECTION 11. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Underwriter and the Offerors and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriter and the Offerors and
their respective successors and the controlling persons and officers and
directors referred to in Sections 1, 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Offerors and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Preferred Securities from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
The Company, on behalf of itself and its subsidiaries (including,
without limitation, the Trust), hereby irrevocably submits to the exclusive
jurisdiction of the federal and New York State courts located in the City of New
York in connection with any suit, action or proceeding related to this Agreement
or any of the matters contemplated hereby, irrevocably waives any defense of
lack of personal jurisdiction and irrevocably agrees that all claims in respect
of any suit, action or proceeding may be heard and determined in any such court.
The Company, on behalf of itself and the subsidiaries (including, without
limitation, the Trust), irrevocably waives, to the fullest extent it may
effectively do so under applicable law, any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
27
SECTION 12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
SECTION 13. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Offerors in accordance with its terms.
Very truly yours,
AMERICAN BANCORPORATION
By:
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
AMERICAN BANCORPORATION CAPITAL TRUST I
By:
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By: Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
By:
-------------------------------------
Xxxx X. Xxxxxxx, Managing Director
29
EXHIBIT A
---------
The opinion of counsel, as counsel for the Offerors to be delivered
pursuant to Section 5(b) of the Underwriting Agreement shall be substantially to
the effect that:
1. The Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to our knowledge, are contemplated by the
Commission. At the time the Registration Statement became effective and at the
Closing Time, the Registration Statement complied in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations, except that we do
not express any opinion as to the financial statements, schedules and other
financial, statistical or accounting data included or incorporated by reference
therein or the exhibits to the Registration Statement, including the statements
of Eligibility and Qualification under the Trust Indenture Act of 1939, as
amended, on Form T-1 of each of the Property Trustee, the Debenture Trustee and
the Guarantee Trustee (the "Forms T-1"). The Prospectus filed as part of the
Registration Statement as originally filed and as filed pursuant to Rule 424
under the 1933 Act, complied when so filed in all material respects with the
1933 Act Regulations, except that we do not express any opinion as to the
financial statements, schedules and other financial, statistical or accounting
data included or incorporated by reference therein or the exhibits to the
Registration Statement, including the Forms T-1.
2. The Company has been duly incorporated and is existing as a
corporation under the laws of the State of Ohio.
3. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the documents
incorporated by reference in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement.
4. The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended, and, to our knowledge, the Company
possesses the foreign qualifications necessary to carry on the business of the
Company, as described in the documents incorporated by reference in the
Prospectus, except where the failure to have such qualifications 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 a whole.
5. The Company had at the date indicated a duly authorized
capitalization as set forth in the Prospectus; 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 the stockholders of the Company have no preemptive
rights.
6. The Bank has been duly incorporated and is existing as a national
bank under the laws of the United States and has the corporate power and
authority and foreign qualifications necessary to own, lease and operate its
properties and to conduct its business, as described in the documents
incorporated by reference in the Prospectus, except where the failure to have
such authority or qualifications 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 a whole; all of the
issued and outstanding capital stock of the Bank has been duly authorized and
validly issued, is fully paid and non-assessable and is owned directly by the
Company, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of such shares was issued in violation of
the preemptive rights of any stockholder of the Bank.
7. The Underwriting Agreement has been duly authorized, executed and
delivered by the Trust and the Company.
8. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Trust Act.
9. The Trust Agreement has been duly authorized, executed and delivered
by the Company and the Administrative Trustees and is a valid and binding
obligation of each of the Company and the Administrative Trustees, enforceable
against the Company and the Administrative Trustees in accordance with its terms
except as rights to indemnity and contribution thereunder may be limited under
applicable law, subject to the qualifications that (i) that enforcement of the
Trust Agreement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws (including the laws of fraudulent conveyance) or
judicial decisions affecting the enforcement of creditors' rights generally and
(ii) the enforceability of the Company's and the Administrative Trustees'
obligations under the Trust Agreement is subject to general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity) and to the effect of certain laws and judicial decisions upon the
availability and enforcement of certain remedies, including the remedies of
specific performance and self-help.
10. The Preferred Securities have been duly authorized for issuance by
the Trust; and the Preferred Securities, when executed and authenticated in
accordance with the Trust Agreement and delivered and paid for in accordance
with the Underwriting Agreement, will be validly issued, fully paid and
nonassessable, representing undivided beneficial ownership interests in the
assets of the Trust; and the holders of such Preferred Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private
2
corporations for profit organized under the General Corporation Law of the State
of Delaware. We bring to your attention, however, that the holders of Preferred
Securities may be obligated, pursuant to the Trust Agreement, to (i) provide
indemnity and/or securities in connection with and pay taxes or governmental
charges arising from transfers of Preferred Securities and (ii) provide security
and indemnity in connection with the requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust Agreement.
11. The Guarantee has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution thereunder may be limited under applicable law,
subject to the qualifications that (i) enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other laws (including the laws of
fraudulent conveyance) or judicial decisions affecting the enforcement of
creditors' rights generally and (ii) the enforceability of the Company's
obligations under the Guarantee is subject to general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity) and to the effect of certain laws and judicial decisions upon the
availability and enforcement of certain remedies, including the remedies of
specific performance and self help.
12. The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution thereunder may be limited under applicable law,
subject to the qualifications that (i) enforcement of the Indenture may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other laws
(including the laws of fraudulent conveyance) or judicial decisions affecting
the enforcement of creditors' rights generally and (ii) the enforceability of
the Company's obligations under the Indenture is subject to general principles
of equity (regardless of whether enforceability is considered in a proceeding at
law or in equity) and to the effect of certain laws and judicial decisions upon
the availability and enforcement of certain remedies, including the remedies of
specific performance and self help.
13. The issuance and sale of the Junior Subordinated Debentures has
been duly authorized by the Company and, when duly executed, authenticated and
issued in accordance with the Indenture and paid for in accordance with the
Debenture Subscription Agreement, will constitute 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 rights to indemnity and
contribution thereunder may be limited under applicable law, subject to the
qualifications that (i) enforcement of the Junior Subordinated Debentures may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other laws
(including the laws of fraudulent conveyance) or judicial decisions affecting
the enforcement of creditors' rights generally and (ii) the enforceability of
the
3
Company's obligations under the Junior Subordinated Debentures is subject to
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and to the effect of certain laws and
judicial decisions upon the availability and enforcement of certain remedies,
including the remedies of specific performance and self help.
14. At the time the Registration Statement became effective, the
Registration Statement (except for the financial statements, notes to financial
statements, schedules and other financial or statistical information and data
included therein, as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
During the course of preparation of the Prospectus, we reviewed the
Prospectus and participated in discussions with officers of the Company and the
Bank, and their advisors. We did not participate in the preparation of the
Operative Documents, but have, however, reviewed such documents and discussed
the business and affairs of the Company with officers and representatives of the
Company. Although we have not undertaken to determine independently, and are not
passing upon or assuming any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Prospectus or the Registration
Statement, on the basis of such review and discussions, nothing has come to our
attention that caused us to believe that the Registration Statement (other than
the financial statements, notes to financial statements, schedules and other
financial and statistical information and data included therein or omitted
therefrom, as to which we express no opinion), at the time it became effective
or the date hereof contained or contains an untrue statement of a material fact
or omitted to state a material fact required to be stated therein, or necessary
to make the statements therein, not misleading or that the Prospectus (other
than the financial statements, notes to financial statements, schedules and
other financial and statistical information and data included therein or omitted
therefrom, as to which we express no opinion), as of its date or the date hereof
contained or contains 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.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the law of the State of Ohio and the State of West
Virginia, the law of the State of Delaware concerning the treatment of Delaware
business trusts, the corporate law of the State of Delaware and the federal law
of the United States of America and we do not express any opinion concerning the
application of the "doing business" laws or the securities laws of any
jurisdiction other than the federal securities laws of the United States. In
addition, we do not express any opinion on any issue not expressly addressed
above.
4
EXHIBIT B
---------
The opinion of counsel, as special Delaware counsel to the Offerors and
the Trust to be delivered pursuant to Section 5(c) 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 such 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, subject to the qualifications set
forth herein, 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.
9. The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the Junior 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.
10. The Delaware Trustee is duly incorporated, is validly existing in
good standing as a banking corporation with trust powers under the laws of the
State of Delaware and has the corporate power to act as trustee of a Delaware
business trust under the laws of the State of Delaware.
2
EXHIBIT C
---------
The opinion of counsel to Trust Company and Delaware Trustee to be
delivered pursuant to Section 5(d) 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 New York.
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 Junior Subordinated Debentures delivered on the date hereof have
been duly authenticated by the Indenture Trustee in accordance with the terms of
the Indenture.
