Exhibit 1
SEACOAST CAPITAL TRUST I
(a Delaware business trust)
2,000,000 Preferred Securities
[ ]% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
UNDERWRITING AGREEMENT
[ ], 2002
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Seacoast Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act of the State of Delaware (the "Delaware
Act"), and Seacoast Financial Services Corporation, a Massachusetts corporation
(the "Company"), as depositor of the Trust and as guarantor (the Trust and the
Company are referred to collectively as the "Offerors"), hereby confirm their
agreement with Xxxx, Xxxx & Co., LLC and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
(together, the "Underwriters"), with respect to the issue and sale by the Trust
and the purchase by the Underwriters of 2,000,000 (the "Initial Securities") of
the Trust's [ ]% Cumulative Trust Preferred Securities (the "Preferred
Securities"). The Trust and the Company also propose to issue and sell to the
Underwriters, at the Underwriters' option, up to an additional 300,000 Preferred
Securities (the "Option Securities") as set forth herein. The term "Preferred
Securities" as used herein, unless indicated otherwise, shall mean the Initial
Securities and the Option Securities.
The Preferred Securities and the Common Securities (as defined herein) are
to be issued pursuant to the terms of an Amended and Restated Trust Agreement,
to be dated as of the Closing Time (as defined in Section 2 hereof) (the "Trust
Agreement"), among the Company, as depositor, State Street Bank and Trust
Company (the "Trust Company"), a Massachusetts trust company, as property
trustee (the "Property Trustee"), Christiana Bank and Trust Company, a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee"), and Xxxxx X.
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Champagne, an individual, and Xxxxxxx X. Xxxxxxxxxx, Xx., an individual (the
"Administrative Trustees" and, together with the Property Trustee and the
Delaware Trustee, the "Trustees") and the holders from time to time of undivided
interests in the assets of the Trust. The Preferred Securities will be
guaranteed by the Company to the extent provided in the Guarantee Agreement, to
be dated as of the Closing Time (the "Guarantee Agreement"), between the Company
and the Trust Company, as trustee (the "Guarantee Trustee"), with respect to
distributions and payments upon liquidation, redemption and otherwise. The
assets of the Trust will consist of $ aggregate original principal amount of [
]% Junior Subordinated Deferrable Interest Debentures due June 30, 2032 (the
"Debentures") of the Company which will be issued under the Indenture to be
dated as of the Closing Time (the "Indenture"), between the Company and the
Trust Company, as trustee (the "Indenture Trustee"). The Company has agreed to
pay all costs, expenses and liabilities of the Trust payable to third parties,
with certain exceptions, pursuant to the Agreement as to Expenses and
Liabilities, to be dated as of the Closing Time, between the Company and the
Trust (the "Expense Agreement"). Under certain circumstances, the Debentures
will be distributable to the holders of undivided beneficial interests in the
assets of the Trust. The entire proceeds from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of the Trust's common securities (the "Common Securities") and
will be used by the Trust to purchase an equivalent amount of the Debentures.
The initial public offering price for the Preferred Securities, the
purchase price to be paid by the Underwriters for the Preferred Securities, the
commission per Preferred Security to be paid by the Company to the Underwriters
and the rate of interest to be paid on the Preferred Securities shall be agreed
upon by the Company and the Underwriters, and such agreement shall be set forth
in a separate written instrument substantially in the form of EXHIBIT A hereto
(the "Price Determination Agreement"). The Price Determination Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Underwriters and shall specify such applicable
information as is indicated in EXHIBIT A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File Nos.
333-86354 and 333-86354-01) covering the registration of the Preferred
Securities, the Guarantee and the Debentures under the Securities Act of 1933,
as amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses, and, if such registration statement has not become effective, the
Company will prepare and file, prior to the effective date of such registration
statement, an amendment to such registration statement, including a final
prospectus. Each prospectus used before the time such registration statement
becomes effective is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it becomes effective, is herein called the "Registration Statement," and
the prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, included in the Registration
Statement at the time it becomes effective is herein called the "Prospectus,"
except
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that, if any revised prospectus provided to the Underwriters by the Company for
use in connection with the offering of the Preferred Securities differs from the
prospectus included in the Registration Statement at the time it becomes
effective (whether or not such prospectus is required to be filed pursuant to
Rule 424(b) under the 1933 Act ("Rule 424(b)"), the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first furnished
to the Underwriters for such use.
The Company understands that the Underwriters propose to make a public
offering of the Preferred Securities (the "Offering") as soon as possible after
the Registration Statement becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Preferred Securities.
Section 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to and agree
with the Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act and, when the Registration Statement on such form shall become
effective and at all times subsequent thereto up to the Closing Time
referred to below (and, with respect to the Option Securities, up to the
Option Closing Date referred to below), (A) the Registration Statement and
any amendments and supplements thereto will comply in all material respects
with the requirements of the 1933 Act and the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"); (B) neither the
Registration Statement nor any amendment or supplement thereto will contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and (C) neither the Prospectus nor any amendment or supplement thereto will
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that this
representation and warranty does not apply to statements or omissions made
in reliance upon and in conformity with information furnished in writing to
the Offerors by the Underwriters expressly for use in the Registration
Statement or the Prospectus, or any information contained in any Form T-1
which is an exhibit to the Registration Statement. The statements contained
under the caption "Underwriting" in the Prospectus constitute the only
information furnished to the Offerors in writing by the Underwriters
expressly for use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations") and, when read together and with the other
information in the Prospectus, at the time the Registration Statement
becomes effective and at all times subsequent thereto up to the Closing
Time, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated
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therein or necessary in order to make the statements therein not
misleading, in each case after excluding any statement that does not
constitute a part of the Registration Statement or the Prospectus pursuant
to Rule 412 of the 1933 Act Regulations.
(iii) Xxxxxx Xxxxxxxx LLP, who are reporting upon the audited
financial statements included or incorporated by reference in the
Registration Statement, are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) The consolidated financial statements, audited and unaudited
(including the notes thereto), included or incorporated by reference in the
Registration Statement present fairly the consolidated financial position
of the Company and its subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and its
subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
otherwise stated therein. The financial statement schedules, if any,
included in the Registration Statement present fairly the information
required to be stated therein. The selected financial, pro forma and
statistical data included in the Prospectus are accurate in all material
respects and present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited and unaudited
consolidated financial statements included or incorporated by reference in
the Registration Statement.
(v) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts with
corporate power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus. Each
direct and indirect subsidiary of the Company is an entity duly organized,
validly existing and in good standing under the laws of its respective
jurisdiction of organization with corporate power and authority under such
laws to own, lease and operate its properties and conduct its business. The
Company and each of its direct and indirect subsidiaries is duly qualified
to transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(vi) The Company is duly registered with the Board of Governors of the
Federal Reserve System as a bank holding company under the Bank Holding
Company Act of 1956, as amended ("BHCA"); each subsidiary of the Company
that conducts business as a bank is duly authorized to conduct such
business in each jurisdiction in which such business is currently
conducted; and the deposit accounts of Compass Bank for Savings and
Nantucket Bank (each, a "Bank" and collectively the "Banks") are insured by
the Savings Association Insurance Fund of the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum allowable limits thereof. The
Offerors have all such power, authority, authorization, approvals and
orders as may be required to
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enter into this Agreement, to carry out the provisions and conditions
hereof and to issue and sell the Preferred Securities and the Debentures.
(vii) Compass Bank for Savings is a savings bank duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business; Nantucket Bank
is a savings bank duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts with corporate power
and authority under such laws to own, lease and operate its properties and
conduct its business; each Bank is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company and
its subsidiaries, considered as one enterprise. All of the outstanding
shares of capital stock of each Bank and each of the Company's other
subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by the Company directly or
indirectly, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
(viii) Except for the Banks and the Trust, the Company does not have
any "significant subsidiaries" as defined in Rule 1-02 of Regulation S-X of
the Commission.
(ix) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Prospectus under the caption
"Capitalization." The capital stock of the Company and the Debentures
conform in all material respects to the description thereof contained or
incorporated by reference in the Prospectus and such description conforms
in all material respects to the rights set forth in the instruments
defining the same.
(x) This Agreement has been duly authorized, executed and delivered by
the Offerors and, when duly executed by the Underwriters, will constitute
the valid and binding agreement of the Offerors enforceable against the
Offerors in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles. The Guarantee Agreement, the Debentures, the
Trust Agreement, the Expense Agreement and the Indenture have each been
duly authorized and, when duly executed and delivered by the Company and,
in the case of the Guarantee, by the Guarantee Trustee, in the case of the
Trust Agreement, by the Trustees, and in the case of the Indenture, by the
Indenture Trustee, will constitute the valid and legally binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or
general equitable principles. The Debentures are entitled to the benefits
of the Indenture, and the Guarantee Agreement, the Debentures, the Trust
Agreement, the Expense Agreement and the Indenture conform in all material
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respects to the descriptions thereof in the Prospectus. The Trust
Agreement, the Guarantee Agreement and the Indenture have been duly
qualified under the Trust Indenture Act of 1939, as amended (the "TIA").
(xi) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Act with the
power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus. 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. The Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and the
agreements and instruments contemplated by the Trust Agreement or described
in the Prospectus; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement and
the Trust Agreement and described in the Prospectus; and the Trust is not a
party to or subject to any action, suit or proceeding of any nature.
(xii) The Preferred Securities have been duly and validly authorized
by the Trust for issuance and sale to the Underwriters pursuant to this
Agreement and, when executed and authenticated in accordance with the terms
of the Trust Agreement and delivered by the Trust to the Underwriters
pursuant to this Agreement against payment of the consideration set forth
herein, will be validly issued, fully paid and non-assessable and will
constitute valid and legally binding obligations of the Trust enforceable
in accordance with their terms and entitled to the benefits provided by the
Trust Agreement. The Preferred Securities conform in all material respects
to the description thereof in the Prospectus, and such description conforms
in all material respects to the rights set forth in the instruments
defining the same; the holders of the Preferred Securities will be entitled
to the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware; and the issuance of the Preferred Securities is
not subject to any preemptive or other similar rights.
(xiii) The Common Securities have been duly and validly authorized by
the Trust and, upon delivery by the Trust to the Company against payment
therefor as described in the Prospectus, will be duly and validly issued
and fully paid undivided beneficial interests in the assets of the Trust
and will conform in all material respects to the description thereof in the
Prospectus, and such description conforms in all material respects to the
rights set forth in the instruments defining the same; the issuance of the
Common Securities is not subject to any preemptive or other similar rights;
and at the Closing Time, all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(xiv) The issuance and sale of the Preferred Securities and the Common
Securities by the Trust, the compliance by the Trust with all of the
provisions of this Agreement, the purchase of the Debentures by the Trust,
and the consummation of the transactions herein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, the Trust Agreement or any statute
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or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust or any of its properties; and no
consent, approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other
governmental agency or body is required to be obtained by the Trust for the
issue and sale of the Preferred Securities and the Common Securities by the
Trust, the purchase of the Debentures by the Trust or the consummation by
the Trust of the transactions contemplated by this Agreement and the Trust
Agreement, except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already been
obtained, or as may be required under the 1933 Act or the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations, state securities
laws or the TIA.
(xv) The issuance by the Company of the Guarantee and the Debentures,
the compliance by the Company with all of the provisions of this Agreement,
the execution, delivery and performance by the Company of the Trust
Agreement, the Debentures, the Guarantee Agreement, the Expense Agreement
and the Indenture, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, loan agreement, mortgage, deed of trust or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation
of the provisions of the articles of incorporation, charter or by-laws of
the Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, any of its subsidiaries or any of their respective
properties, except in any case for such conflicts, breaches, defaults or
violations that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or business
prospects of the Company and its subsidiaries, considered as one
enterprise, and would not prohibit or otherwise adversely affect the
ability of the Company to complete the transactions contemplated thereby;
and no consent, approval, authorization, order, license, certificate,
permit, registration or qualification of or with any such court or other
governmental agency or body is required for the issue of the Guarantee and
the Debentures or the consummation by the Company of the other transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations, licenses, certificates, permits, registrations or
qualifications as have already been obtained, or as may be required under
the 1933 Act or the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations, state securities laws or the TIA.
(xvi) The Trust has not engaged in any activity that would result in
the Trust being, and after giving effect to the offering and sale of the
Preferred Securities the Trust will not be, an "investment company," or an
entity "controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act").
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(xvii) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable, and are not subject to the preemptive rights of any
stockholder of the Company.
(xviii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has not been (A) any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any subsidiary, other than
in the ordinary course of business, that is material to the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock. Neither the Company, the Banks nor any other subsidiary has
any material liability of any nature, contingent or otherwise, except as
set forth in the Prospectus.
(xix) Neither the Company, the Banks nor any other subsidiary is in
violation of any provision of its articles of organization, charter or
bylaws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties may be subject, except for such defaults that, individually or
in the aggregate, would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xx) Except as disclosed in the Prospectus, there is no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against the Company, the Banks or any other subsidiary
that is required to be disclosed in the Prospectus or that could reasonably
be expected to result in any material adverse change in the condition
(financial or otherwise), earnings, business affairs, assets or business
prospects of the Company and its subsidiaries, considered as one
enterprise, or that could reasonably be expected materially and adversely
to affect the properties or assets of the Company and its subsidiaries,
considered as one enterprise, or that could reasonably be expected
materially and adversely to affect the consummation of the transactions
contemplated in this Agreement; all pending legal or governmental
proceedings to which the Company, the Banks or any other subsidiary is a
party that are not described in the Prospectus, including ordinary routine
litigation incidental to its business, if decided in a manner adverse to
the Company, would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise.
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(xxi) There are no material contracts or documents of a character
required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are not
described and filed as required.
(xxii) Each of the Company and its direct and indirect subsidiaries,
including the Banks, has good and marketable title to all properties and
assets described in the Prospectus as owned by it, free and clear of all
liens, charges, encumbrances or restrictions, except such as (A) are
described in the Prospectus or (B) are neither material in amount nor
materially significant in relation to the business of the Company and its
subsidiaries, considered as one enterprise; all of the leases and subleases
material to the business of the Company and its subsidiaries, considered as
one enterprise are in full force and effect, and neither the Company, the
Banks nor any other subsidiary has any notice of any material claim that
has been asserted by anyone adverse to the rights of the Company, the Banks
or any other subsidiary under any such lease or sublease or affecting or
questioning the rights of such corporation to the continued possession of
the leased or subleased premises under any such lease or sublease.
(xxiii) Each of the Company and its direct and indirect subsidiaries,
including each Bank, owns, possesses or has obtained all material
governmental licenses, permits, certificates, consents, orders, approvals
and other authorizations necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as presently
conducted, and neither the Company, each Bank nor any other subsidiary has
received any notice of any restriction upon, or any notice of proceedings
relating to revocation or modification of, any such licenses, permits,
certificates, consents, orders, approvals or authorizations.
(xxiv) No labor problem with the employees of the Company, the Banks
or any other subsidiary exists or, to the best knowledge of the Company, is
imminent that could materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any
of its, the Banks' or any other subsidiary's principal suppliers,
contractors or customers that could reasonably be expected to materially
adversely affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xxv) Except as disclosed in the Prospectus, there are no persons with
registration or other similar rights to have any securities of the Company
registered pursuant to the Registration Statement or otherwise registered
by the Company under the 1933 Act.
(xxvi) Except as disclosed in the Prospectus, the Company and its
direct and indirect subsidiaries, including the Banks, 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,
service marks and trade names (collectively, "patent and proprietary
rights") currently employed by them in connection with the business now
operated by them
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except where the failure to own, possess or acquire such patent and
proprietary rights would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise. Neither the Company, the Banks nor any other subsidiary has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any patent or
proprietary rights, and which infringement or conflict (if the subject of
any unfavorable decision, rule and refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change in
the condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered as
one enterprise.
(xxvii) The Company and each subsidiary of the Company have filed all
federal, state and local income, franchise or other tax returns required to
be filed and have made timely payments of all taxes shown thereon to be due
and payable in respect of such returns, and no material deficiency has been
asserted with respect thereto by any taxing authority.
(xxviii) The Preferred Securities have been approved for inclusion in
the Nasdaq National Market.
(xxix) The Company has filed with the NASD all documents and notices
required by the NASD of companies that have issued securities that are
traded in the over-the-counter market and quotations for which are reported
by the Nasdaq National Market.
(xxx) Neither the Trust, the Company, the Banks nor any other
subsidiary has taken or will take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation,
under the Exchange Act or otherwise, of the price of the Preferred
Securities.
(xxxi) Neither the Company, the Banks nor any other subsidiary is or
has been (by virtue of any action, omission to act, contract to which it is
a party or by which it is bound, or any occurrence or state of facts
whatsoever) in violation of any applicable foreign, 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, consumer credit,
truth-in-lending, usury, currency transaction reporting, environmental
protection, occupational safety and health and equal employment practices)
heretofore or currently in effect, except such violations that have been
fully cured or satisfied without recourse or that in the aggregate will not
have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company and
its subsidiaries, considered as one enterprise.
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(xxxii) Neither the Company, the Banks nor any other subsidiary has
any agreement or understanding with any person (A) concerning the future
acquisition by the Company or the Bank of a controlling interest in any
entity or (B) concerning the future acquisition by any person of a
controlling interest in the Company, the Banks or any other subsidiary, in
either case 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.
(b) Any certificate signed by any authorized officer of the Company or the
Bank and delivered to the Underwriters or to counsel for the Underwriters
pursuant to this Agreement shall be deemed a representation and warranty by the
Company to the Underwriters as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees to sell
to the Underwriters, and the Underwriters agree to purchase from the Trust,
2,000,000 Initial Securities at the purchase price and terms set forth herein
and in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
hereby grants an option to the Underwriters to purchase up to an additional
300,000 Preferred Securities in accordance with the terms set forth herein and
in the Price Determination Agreement. The option hereby granted will expire at
5:00 p.m. on the 30th day after the date the Registration Statement is declared
effective by the Commission (or at 5:00 p.m. on the next business day following
the 30th day if such 30th day is not a business day) and may be exercised in
whole or in part but not more than one time solely for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriters to the
Company setting forth the number of Option Securities as to which the
Underwriters are exercising the option and the time, date and place of payment
and delivery for the Option Securities. Such time and date of delivery (the
"Option Closing Date") shall be determined by the Underwriters but shall not be
later than five full business days after the exercise of said option, nor in any
event prior to Closing Time, as hereinafter defined, nor earlier than the second
business day after the date on which the notice of the exercise of the option
shall have been given.
(b) Payment of the purchase price for, and delivery of certificates for,
the Initial Securities shall be made at the offices of Xxxxxxx Xxxxxxxx & Xxxx,
0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, XX 00000, or at such other
place as shall be agreed upon by the Company and the Underwriters, at 10:00 a.m.
on the third full business day after the effective date of the Registration
Statement, or at such other time not earlier than three nor more than ten full
business days thereafter as the Underwriters and the Company shall determine
(such date and time of payment and delivery being herein called the "Closing
Time"). In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
office of Xxxxxxx Xxxxxxxx & Wood, or at such other place as shall be agreed
upon by the Company and the Underwriters, on the Option Closing Date as
specified in the notice from the Underwriters to the Company. Payment for the
Initial Securities and the Option
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Securities, if any, shall be made to the Company by wire transfer of immediately
available funds, against delivery to the Underwriters for the account of the
Underwriters of Preferred Securities to be purchased by it.
(c) The Preferred 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 Underwriters may
request in writing at least one business day before the Closing Date or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available for examination by the Underwriters and counsel to the Underwriters
not later than 10:00 a.m. on the business day prior to the Closing Time or the
Option Closing Date, as the case may be.
Section 3. CERTAIN COVENANTS OF THE OFFERORS. Each of the Offerors
covenants jointly and severally with the Underwriters as follows:
(a) The Offerors will use their best efforts to cause the Registration
Statement to become effective and will notify the Underwriters immediately, and
confirm the notice in writing, (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request of the Commission to amend the Registration Statement or amend or
supplement the Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Preferred Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes. The
Offerors will use every reasonable effort to prevent the issuance of any such
stop order or of any order preventing or suspending such use and, if any such
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the
Registration Statement or, if the Offerors have elected to rely upon Rule 430A
of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the
Prospectus (including documents incorporated by reference into the Registration
Statement or the Prospectus) of which the Underwriters shall not previously have
been advised and furnished a copy, or to which the Underwriters or counsel for
the Underwriters shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriters as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-3 under the 0000 Xxx) and signed copies of all
consents and certificates of experts as the Underwriters may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the Underwriters,
without charge, from time to time until the effective date of the Registration
Statement, as many copies of each preliminary prospectus as the Underwriters may
reasonably request, and the
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Offerors hereby consent to the use of such copies for purposes permitted by the
1933 Act. The Offerors will deliver or cause to be delivered to the
Underwriters, without charge, as soon as the Registration Statement shall have
become effective (or, if the Offerors have elected to rely upon Rule 430A, as
soon as practicable after the Price Determination Agreement has been executed
and delivered) and thereafter from time to time as requested by the Underwriters
during the period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of the Prospectus (as supplemented or amended) as the
Underwriters may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act
and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so
as to permit the completion of the distribution of the Preferred Securities as
contemplated in this Agreement and in the Prospectus. If, at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Preferred Securities, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or counsel for the Offerors, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading, in light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b) hereof, such amendment or supplement as may be necessary
to correct such untrue statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the
Underwriters, to qualify the Preferred Securities and the Debentures for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Underwriters may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; PROVIDED, HOWEVER, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Preferred Securities have been
qualified as above provided.
(g) The Company will make generally available (within the meaning of Rule
158 of the 1933 Act Regulations ("Rule 158") to the holders of the Preferred
Securities and the Underwriters as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings statement of the
Company and its subsidiaries (in form complying with the provisions of Rule 158)
covering a period of at least 12 months beginning after the effective date of
the Registration Statement but not later than the first day of the Company's
fiscal quarter next following such effective date.
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(h) The Trust shall apply the entire proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the issuance by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of Debentures from the Company. The Company and the Bank will use the net
proceeds received by them from the sale of the Debentures in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when a prospectus is required by the
1933 Act to be delivered in connection with sales of Preferred Securities, will
file promptly all documents required to be filed with the Commission pursuant to
Section 13 or 14 of the 1934 Act subsequent to the time the Registration
Statement becomes effective.
(j) For a period of three years after the Closing Time, the Company will
furnish to the Underwriters copies of all annual reports, quarterly reports and
current reports filed by the Company with the Commission and such other
documents, reports, proxy statements and information as shall be furnished by
the Company to its stockholders generally which are not filed via the
Commission's XXXXX system.
(k) The Company will provide to the holders of the Preferred Securities
annual reports containing financial statements audited by the Company's
independent auditors and, provided the Company continues to be subject to the
Securities Exchange Act of 1934, upon written request, the Company's annual
reports on Form 10-K.
(l) The Offerors will file with the NASD all documents and notices required
by the NASD of companies that have issued securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
Stock Market.
(m) The Company shall pay the legal fees and related filing fees of Xxxxxxx
Xxxxxxxx & Wood, counsel to the Underwriters, to prepare one or more "blue sky"
surveys (each, a "Blue Sky Survey") for use in connection with the offering of
the Preferred Securities as contemplated by the Prospectus and a copy of such
Blue Sky Survey or surveys shall be delivered to each of the Company and the
Underwriters.
(n) If, at the time the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A, then
the Offerors will prepare, and file or transmit for filing with the Commission
in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus
or, if required by Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus) containing all information so
omitted.
(o) The Company will, at its expense, subsequent to the issuance of the
Preferred Securities, prepare and distribute to the Underwriters and counsel to
the Underwriters copies of the documents used in connection with the issuance of
the Preferred Securities.
(p) The Offerors will not, prior to the Option Closing Date or thirty (30)
days after the date of this Agreement, whichever occurs first, incur any
material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
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Prospectus pursuant to Item 404 of Regulation S-K of the Commission, except as
contemplated by the Prospectus.
(q) During a period of thirty (30) days from the date of the Prospectus,
neither the Trust nor the Company will, without the prior written consent of the
Underwriters, directly or indirectly, offer, sell, offer to sell, or otherwise
dispose of any Preferred Securities, any other beneficial interests in the
assets of the Trust, or any preferred securities or other securities of the
Trust or the Company that are substantially similar to the Preferred Securities,
including any guarantee of such securities. The foregoing sentence shall not
apply to any of the Preferred Securities to be sold hereunder.
Section 4. PAYMENT OF EXPENSES.
(a) The Offerors jointly and severally will pay and bear all costs and
expenses incident to the performance of its and the Trust's obligations under
this Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, all amendments thereto, all preliminary
prospectuses, the Prospectus and any amendments or supplements thereto, and the
cost of furnishing copies thereof to the Underwriters, (b) the preparation,
printing and distribution of this Agreement, the Preferred Securities and the
Blue Sky Survey, (c) the issuance and delivery of the Preferred Securities to
the Underwriters, including any transfer taxes payable upon the sale of the
Preferred Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) Nasdaq Stock Market filing fees, (f) fees
and disbursements of Xxxxxxx Xxxxxxxx & Xxxx in connection with the Blue Sky
Survey, (g) the qualification of the Preferred Securities under the applicable
securities laws in accordance with Section 3(f) hereof, (h) any filing fee for
review of the Offering by the NASD, (i) the legal fees and expenses of the
Underwriters' counsel not to exceed $75,000 without the Company's prior
approval, and general out-of-pocket expenses of the Underwriters, (j) the fees
and expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee, in connection with the Indenture and the
Debentures; (k) the fees and expenses of the Property Trustee and Delaware
Trustee, including the fees and disbursements of counsel for the Property
Trustee and the Delaware Trustee, in connection with the Trust Agreement and the
Certificate of Trust, and (l) all other costs incident to the performance of the
Offerors' obligations hereunder.
(b) If (i) the Closing Time does not occur on or before June 30, 2002, (ii)
the Company abandons or terminates the Offering, or (iii) this Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or
9(a), the Company shall reimburse the Underwriters for their reasonable
out-of-pocket accountable expenses actually incurred, as set forth in this
Section 4, including the reasonable fees and disbursements of counsel for the
Underwriters, subject to the limitations in Section 4(a) above.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Preferred Securities that it has agreed
to purchase pursuant to this Agreement are subject to the accuracy of the
representations and warranties of the Offerors contained herein or in
certificates of the officers or trustees of the Offerors or any subsidiary
delivered pursuant to the provisions hereof, to the execution of the Price
Determination Agreement no later than 5:30 p.m. on the first business day
following the date
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hereof, or at such later time as the Underwriters may agree in writing (in the
Underwriters' sole discretion), to the performance by the Offerors of their
respective obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later than
4:00 p.m. on the first business day following the date hereof, or at such later
time or on such later date as the Underwriters may agree to in writing; at the
Closing Time, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall be pending or, to the Underwriters' knowledge or the knowledge of
the Offerors, shall be contemplated by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the satisfaction of counsel for the Underwriters. If the Offerors have
elected to rely upon Rule 430A, a prospectus containing the information required
by Rule 430A 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 430A).
(b) At the Closing Time, the Underwriters shall have received:
(i) The favorable opinion, dated as of the Closing Time, of Xxxxx Xxxx
& Eliot LLP ("Xxxxx Xxxx"), counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, substantially in
the form set forth in EXHIBIT B.
(ii) 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 satisfactory to counsel for the Underwriters, substantially
in the form set forth in EXHIBIT C.
(iii) The favorable opinion, dated as of the Closing Time, of Peabody
& Xxxxxx, LLP, counsel for the Trust Company, in form and substance
satisfactory to counsel for the Underwriters, substantially in the form set
forth in EXHIBIT D.
(iv) The favorable opinion, dated as of the Closing Time, of Xxxxxxxx,
Xxxxxx & Finger, P.A., special Delaware counsel for the Delaware Trustee,
in form and substance satisfactory to counsel for the Underwriters,
substantially in the form set forth in EXHIBIT E.
(v) The favorable opinion, dated as of the Closing Time, of Xxxxxxx
Xxxxxxxx & Xxxx, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters.
In giving such opinions, such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the federal law of the United States of
America and the laws of Delaware in the case of Xxxxxxxx, Xxxxxx & Finger, P.A.
upon opinions of other counsel, who shall be counsel satisfactory to counsel for
the Underwriters, in which case the opinion shall state that such counsel
believes that it, the Underwriters and the Underwriters' counsel are entitled to
so rely upon the opinions of such other counsel. Such counsel may also state
that, insofar as such opinion
-16-
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers or trustees of the Company, the Banks and the Trust and
certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date, (i) the
Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and shall conform in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations, the Offerors shall have complied in all material respects with Rule
430A (if they shall have elected to rely thereon), and neither the Registration
Statement nor the Prospectus, as they may then be amended or supplemented, shall
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of business; (iii)
no action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Offerors, threatened against the Company or any subsidiary or
the Trust that would be required to be set forth in the Prospectus that is not
set forth therein, and no proceedings shall be pending or, to the knowledge of
the Offerors, threatened against either of the Offerors or any subsidiary of the
Company before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding would
materially adversely affect the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, other than as set forth in the
Prospectus; (iv) each of the Offerors shall have complied, in all material
respects, with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time or Option Closing Date,
as applicable; (v) the other representations and warranties of the Offerors set
forth in Section l(a) hereof shall be accurate in all material respects as
though expressly made at and as of the Closing Time or Option Closing Date, as
applicable; and (vi) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
been initiated or, to the best knowledge of the Offerors, threatened by the
Commission. At the Closing Time, the Underwriters shall have received a
certificate of the Chairman of the Board or the President and the Chief
Financial Officer or the Controller of the Company, dated as of the Closing
Time, to such effect.
(d) At the time that this Agreement is executed by the Company, the
Underwriters shall have received:
(i) from Xxxxxx Xxxxxxxx LLP, a letter dated such date, in form and
substance satisfactory to the Underwriters, confirming that they are
independent certified public accountants with respect to the Company within
the meaning of the 1933 Act and the 1933 Act Regulations, and stating in
effect that, with respect to the Company in their opinion, the consolidated
financial statements as of December, 2001 and 2000, and for each of the
years in the three year period ended December, 2001 and the related
financial statement schedules, if any, included or incorporated by
reference in the Registration Statement and the Prospectus and covered by
their opinions included therein comply as to
-17-
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) from KPMG LLP, a letter dated such date, in form and substance
satisfactory to the Underwriters, confirming that they are independent
certified public accountants with respect to the Company within the meaning
of the 1933 Act and the 1933 Act Regulations, and stating in effect that,
(A) on the basis of procedures (but not an audit in accordance
with generally accepted accounting standards) specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, INTERIM
FINANCIAL INFORMATION, including a reading of the latest available
unaudited interim consolidated financial statements of the Company, a
reading of the minutes of all meetings of the Board of Directors of
the Company and the Bank and of the Audit and Executive Committees of
the Board of Directors of the Bank since March 31, 2002, inquiries of
certain officials of the Company and its subsidiaries responsible for
financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(1) the unaudited interim consolidated financial information
included or incorporated by reference in the Prospectus, if any,
do not comply as to form in all material respects with applicable
accounting requirements of the 1933 Act, or are not presented in
conformity with generally accepted accounting principles applied
on a basis consistent with that of the audited financial
statements included in the Prospectus;
(2) at a specified date not more than three business days
prior to the date of this Agreement, there was any increase in
total borrowings, real estate owned or Federal Home Loan Bank
advances of the Company and its consolidated subsidiaries or any
decrease in total assets, total deposits or stockholders' equity
of the Company and its consolidated subsidiaries, any increase in
the number of outstanding shares of capital stock of the Company
and its consolidated subsidiaries or any increase or decrease in
loan loss allowance of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in the
financial statements at March 31, 2002 included in the
Registration Statement, except in all cases for changes,
increases or decreases that the Registration Statement discloses
have occurred or may occur; or
(3) for the period from April 1, 2002 to a specified date
not more than three business days prior to the date of this
Agreement, there was any decrease in consolidated net interest
income, non-interest income, net income or net income per share
or any increase in the consolidated provision for loan losses, in
each case as compared with a period of comparable length in the
preceding year, except in all cases for changes,
-18-
increases or decreases that the Registration Statement discloses
have occurred or may occur; and
(B) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement (including the Selected Consolidated Financial Data) (having
compared such items with, and have found such items to be in agreement
with, the financial statements of the Company or general accounting
records of the Company, as applicable, which are subject to the
Company's internal accounting controls or other data and schedules
prepared by the Company from such records).
(e) At the Closing Time, the Underwriters shall have received from Xxxxxx
Xxxxxxxx LLP and KPMG LLP letters, in form and substance satisfactory to the
Underwriters and dated as of the Closing Time, reaffirming the statements made
in the letter(s) furnished by each pursuant to Section 5(d) hereof, except that
the inquiries specified in Section 5(d) hereof shall be made based upon the
latest available unaudited interim consolidated financial statements and the
specified date referred to shall be a date not more than three days prior to the
Closing Time.
(f) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may request
for the purpose of enabling them to pass upon the issuance and sale of the
Preferred Securities as contemplated in this Agreement and the matters referred
to in Section 5(c) hereof and in order to evidence the accuracy and completeness
of any of the representations, warranties or statements of the Offerors, the
performance of any of the covenants of the Offerors or the fulfillment of any of
the conditions herein contained; and all proceedings taken by the Company at or
prior to the Closing Time in connection with the authorization, issuance and
sale of the Preferred Securities and the Debentures as contemplated in this
Agreement shall be satisfactory in form and substance to the Underwriters and to
counsel for the Underwriters.
(g) Between the date of this Agreement and the Closing Time, (i) no
downgrading shall have occurred in the rating accorded any securities of the
Company or any deposit instruments of the Banks by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) of the 1933 Act Regulations and (ii) no such
organization shall have given any notice of any intended or potential
downgrading or of any surveillance or review, with possible negative
implications, of its rating of any of the Company's securities or any deposit
instruments of the Banks.
(h) The Company shall have paid, or made arrangements satisfactory to the
Underwriters for the payment of, all such expenses as may be required by Section
4 hereof.
(i) The Preferred Securities, the Guarantee and the Debentures shall have
been qualified or registered for sale, or subject to an available exemption from
such qualification or registration, under the "blue sky" or securities laws of
such jurisdictions as shall have been reasonably specified by the Underwriters.
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(j) At the Closing Time, the Preferred Securities shall have been approved
for listing on NASDAQ.
(k) The NASD shall have confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(l) At any time prior to Closing Time, (i) there shall not have occurred
any domestic or international event or act or occurrence that has caused, or in
the Underwriters' reasonable judgment will in the immediate future cause, any
material adverse change or disruption in the financial markets in the United
States or any outbreak of hostilities, escalation of existing hostilities or
declaration of national emergency in the United States or other calamity or
crisis the effect of which, in the reasonable judgment of the Underwriter, is so
material and adverse as to make it impracticable to market the Preferred
Securities or to enforce contracts, including orders, for the sale of the
Preferred Securities, and (ii) trading generally on either the American Stock
Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have
been suspended, and minimum or maximum prices for trading shall not have been
fixed, or maximum ranges for prices for securities have been required, by either
of said Exchanges or by order of the Commission or any other governmental
authority, and a banking moratorium shall not have been declared by either
Federal or Massachusetts authorities.
(m) At the Closing Time, counsel for the Underwriters 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 Underwriters and
counsel for the Underwriters.
(n) In the event the Underwriters exercise their option provided in Section
2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriters to purchase the Option Securities that it has
agreed to purchase shall be subject to the receipt by the Underwriters on the
Option Closing Date of:
(i) A certificate, dated the Option Closing Date, of the Chairman of
the Board or the President and the Chief Financial Officer or the
Controller of the Company confirming that the certificate delivered at the
Closing Time pursuant to Section 5(c) hereof remains true as of the Option
Closing Date;
(ii) The favorable opinion of Xxxxx Xxxx, counsel for the Company,
addressed to the Underwriters and dated the Option Closing Date, in form
satisfactory to Xxxxxxx Xxxxxxxx & Wood, counsel to the Underwriters,
relating to the Option Securities and otherwise to the same effect as the
opinion required by Section 5(b)(i) hereof;
(iii) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.,
special Delaware counsel for the Offerors, addressed to the Underwriters
and dated the Option Closing Date, in form satisfactory to Xxxxxxx Xxxxxxxx
& Wood, counsel to the
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Underwriters, relating to the Option Securities and otherwise to the same
effect as the opinion required by Section 5(b)(ii) hereof;
(iv) The favorable opinion of Peabody & Xxxxxx LLP, counsel for the
Property Trustee, addressed to the Underwriters and dated the Option
Closing Date, in form satisfactory to Xxxxxxx Xxxxxxxx & Wood, counsel to
the Underwriters, relating to the Option Securities and otherwise to the
same effect as the opinion required by Section 5(b)(iii) hereof;
(v) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel
for the Delaware Trustee, addressed to the Underwriters and dated the
Option Closing Date, in form satisfactory to Xxxxxxx Xxxxxxxx & Wood,
counsel to the Underwriters, relating to the Option Securities and
otherwise to the same effect as the opinion required by Section 5(b)(iv)
hereof;
(vi) The favorable opinion of Xxxxxxx Xxxxxxxx & Xxxx, counsel to the
Underwriters, dated the Option Closing Date, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(b)(iv) hereof; and
(vii) Letters from Xxxxxx Xxxxxxxx LLP and KPMG LLP addressed to the
Underwriters and dated the Option Closing Date, in form and substance
satisfactory to the Underwriters and substantially the same in form and
substance as the letter(s) furnished to the Underwriters pursuant to
Section 5(e) hereof.
(viii) At the Closing Time, counsel for the Underwriters 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 Underwriters and counsel for the Underwriters.
(o) 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 Underwriters 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.
If any of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement, this Agreement may be
terminated by the Underwriters on notice to the Offerors at any time at or prior
to the Closing Time, and such termination shall be without liability of any
party to any other party, except as provided in Section 4 of this Agreement.
Notwithstanding any such termination, the provisions of Sections 4, 6, 7, 10 and
12 of this Agreement shall remain in effect.
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Section 6. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and hold harmless
the Underwriters, each officer, director, employee, agent and legal counsel of
the Underwriters, and each person, if any, who controls the Underwriters within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any loss, liability, claim, damage and expense whatsoever (which shall
include, but not be limited to, amounts incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim or
investigation whatsoever and any and all amounts paid in settlement of any claim
or litigation, provided such settlement is entered into with the consent of the
Offerors as provided herein), arising out of, based upon or in connection with
(i) any untrue statement or alleged untrue statement of a material fact or any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any preliminary prospectus, the Registration Statement or the Prospectus (as
from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any preliminary prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or the Trust or based
upon written information furnished by or on behalf of the Company or the Trust
filed in any jurisdiction in order to qualify the Preferred Securities under the
"blue sky" or securities laws thereof or filed with the Commission, the NASD or
any securities exchange, unless such statement or omission or alleged statement
or omission was made in reliance upon and in conformity with written information
concerning the Underwriters, this Agreement or the compensation of the
Underwriters furnished to the Offerors by or on behalf of the Underwriters
expressly for inclusion in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or in any
application, as the case may be, or (ii) any breach of any representation,
warranty, covenant or agreement of the Offerors contained in this Agreement. For
purposes of this section, the term "expense" shall include, but not be limited
to, counsel fees and costs, court costs, out-of-pocket costs and compensation
for the time spent by any of the Underwriters' directors, officers, employees
and counsel according to his or her normal hourly billing rates. The
indemnification provisions shall also extend to all directors, officers,
employees, agents, legal counsel and controlling persons of each affiliate of
the Underwriters.
(b) The Underwriters agree to indemnify and hold harmless each of the
Offerors, each of their directors or trustees, each officer who signed the
Registration Statement, and each person, if any, who controls the Offerors
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) above, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any application in
reliance upon and in conformity with written information about the Underwriters,
this Agreement or the compensation of the Underwriters, furnished to either of
the Offerors by the Underwriters expressly for inclusion in such preliminary
prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or in any application.
-22-
(c) An indemnified party shall give prompt notice to each indemnifying
party if any action, suit, proceeding or investigation is commenced in respect
of which indemnity may be sought hereunder, but failure to notify an
indemnifying party shall not relieve the indemnifying party from its obligations
to indemnify hereunder, except to the extent that the indemnifying party has
been prejudiced in any material respect by such failure. If it so elects within
a reasonable time after receipt of such notice, an indemnifying party may assume
the defense of such action, including the employment of counsel satisfactory to
the indemnified parties and the payment of all expenses of the indemnified party
in connection with such action. Such indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have promptly employed counsel satisfactory
to such indemnified party or parties or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other indemnified parties that are materially different from
or additional to those available to one or more of the indemnifying parties, in
any of which events such fees and expenses shall be borne by the indemnifying
party and the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party or parties. The Offerors shall
be jointly and severally liable for any settlement of any claim against the
Underwriters (or any of its directors, officers, employees, agents, legal
counsel or controlling persons) made with the Offerors' written consent, which
consent shall not be unreasonably withheld. The Offerors shall not, without the
written consent of the Underwriters, settle or compromise any claim against the
Underwriters (or any of its directors, officers, employees, agents, legal
counsel or controlling persons) based upon circumstances giving rise to an
indemnification claim against the Offerors hereunder unless such settlement or
compromise provides that the Underwriters and the other indemnified parties
shall be unconditionally and irrevocably released from all liability in respect
to such claim.
(d) In order to provide for just and equitable contribution, if a claim for
indemnification pursuant to these indemnification provisions is made but it is
found in a final judgment by a court that such indemnification may not be
enforced in such case, even though the express provisions hereof provide for
indemnification in such case, then the Offerors, on the one hand, and the
Underwriters, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense (i) in such proportion as is appropriate to reflect the relative
benefits received by the Offerors, on the one hand, and the Underwriters, on the
other hand, from the underwriting, 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 the Underwriters, on
the other hand, in connection with the statements, acts or omissions which
resulted in such loss, liability, claim, damage and expense, and any other
relevant equitable considerations. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, the Underwriters shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
commission paid to the Underwriters with respect to the Preferred Securities
purchased by the Underwriters.
-23-
(e) The indemnity and contribution agreements contained herein are in
addition to any liability which the Offerors may otherwise have to the
Underwriters.
(f) Neither termination nor completion of the engagement of the
Underwriters nor any investigation made by or on behalf of the Underwriters
shall affect the indemnification obligations of the Offerors or the Underwriters
hereunder, which shall remain and continue to be operative and in full force and
effect.
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other statements of
the Offerors or their officers or trustees set forth in or made pursuant to this
Agreement will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors or the Underwriters or any
controlling person and will survive delivery of and payment for the Preferred
Securities.
Section 8. OFFERING BY THE UNDERWRITERS. The Offerors are advised by the
Underwriters that the Underwriters propose to make a public offering of the
Preferred Securities, on the terms and conditions set forth in the Registration
Statement from time to time as and when the Underwriters deem advisable after
the Registration Statement becomes effective. Because the NASD is expected to
view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's Conduct Rules.
Section 9. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis, the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' judgment, so material and adverse as to
make it impracticable to market the Preferred Securities or enforce contracts
for the sale of the Preferred Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or the
NASD, or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the NASD or any other
governmental authority with appropriate jurisdiction over such matters, or (iv)
if a banking moratorium has been declared by any federal or Massachusetts
authority, or (v) if there shall have been such material and substantial change
in the market for securities in general or in political, financial or economic
conditions as in the Underwriters' judgment makes it inadvisable to proceed with
the offering, sale and delivery of the Preferred Securities on the terms
contemplated by the Prospectus, (vi) if the Underwriters reasonably determine
(which determination shall be in good faith) that there has not been
satisfactory disclosure of all relevant financial information relating to the
Offerors in the Offerors' disclosure documents and that the
-24-
sale of the Preferred Securities is inadvisable given such disclosures or (vii)
if the Price Determination Agreement has not been executed by all the parties
hereto prior to 5:30 p.m. on the first business day following the date of this
Agreement.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4 hereof. Notwithstanding any such
termination, the provisions of Sections 4, 6, 7, 10 and 12 hereof shall remain
in effect.
Section 10. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices shall be addressed as follows:
If to the Underwriters:
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxx X. Xxxxxxx, Chairman and Chief Executive Officer
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Managing Director
with a copy to:
Xxxxxxx Xxxxxxxx & Xxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Company or the Trust:
Seacoast Financial Services Corporation
Xxx Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, President and Chief Executive Officer
with a copy to:
Xxxxx Xxxx LLP
World Trade Center West
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
-25-
Section 11. PARTIES. This Agreement is made solely for the benefit of the
Underwriters, and the officers, directors, employees, agents and legal counsel
of the Underwriters specified in Section 6 hereof, the Trust and the Company
and, to the extent expressed, any person controlling the Trust, the Company or
the Underwriters, and the directors of the Company, or trustees of the Trust,
their respective officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include any purchaser, as such
purchaser, from the Underwriters of the Preferred Securities.
Section 12. ARBITRATION. Any claims, controversies, demands, disputes or
differences between or among the parties hereto or any persons bound hereby
arising out of, or by virtue of, or in connection with, or otherwise relating to
this Agreement shall be submitted to and settled by arbitration conducted in
Massachusetts before one or three arbitrators, each of whom shall be
knowledgeable in the field of securities law and investment banking. Such
arbitration shall be conducted in accordance with the rules then obtaining of
the American Arbitration Association. The parties hereto agree to share equally
the responsibility for all fees of the arbitrators, abide by any decision
rendered as final and binding and waive the right to appeal the decision or
otherwise submit the dispute to a court of law for a jury or non-jury trial. The
parties hereto specifically agree that neither party may appeal or subject the
award or decision of any such arbitrator to appeal or review in any court of law
or in equity or in any other tribunal, arbitration system or otherwise. Judgment
upon any award granted by such arbitrator may be enforced in any court having
jurisdiction thereof.
Section 13. GOVERNING LAW AND TIME. This Agreement shall be governed by the
laws of the State of New Jersey. Specified times of the day refer to New York
City time.
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
-26-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement among the Company, the Trust and the
Underwriters in accordance with its terms.
Very truly yours,
SEACOAST CAPITAL TRUST I
By: Seacoast Financial Services Corporation,
as Depositor
By:
---------------------------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
SEACOAST FINANCIAL SERVICES
CORPORATION
By:
---------------------------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., LLC
By:
------------------------------------------------
Xxx X. Xxxxxxx
Chairman and Chief Executive Officer
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By:
------------------------------------------------
Xxxx X. Xxxxxxx
Managing Director
-27-
EXHIBIT A
SEACOAST CAPITAL TRUST I
(a Delaware business trust)
2,000,000 Preferred Securities
[ ]% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
PRICE DETERMINATION AGREEMENT
[ ], 2002
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof (the
"Underwriting Agreement"), among Seacoast Capital Trust I, a Delaware business
trust (the "Trust"), Seacoast Financial Services Corporation, a Massachusetts
corporation (the "Company" and, together with the Trust, the "Offerors"), and
Xxxx, Xxxx & Co., LLC and Xxxx Xxxxx Xxxx Xxxxxx, Incorporated (together, the
"Underwriters"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Trust, subject to the terms and conditions set forth
therein, of 2,000,000 of the [ ]% Cumulative Trust Preferred Securities of the
Trust (the "Preferred Securities"), subject to the Underwriters' option to
purchase up to an additional 300,000 Preferred Securities (to cover
over-allotments, if any). This Agreement is the Price Determination Agreement
referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors agree
with the Underwriters as follows:
1. The public offering price per Preferred Security shall be $25.
2. The purchase price for the Preferred Securities to be paid by the
Underwriters shall be $25 per Preferred Security.
A-1
3. The commission per Preferred Security to be paid by the Company to the
Underwriters for its commitment hereunder shall be $0.90625 per Preferred
Security.
4. The distribution rate on the Preferred Securities shall be [ ]% per
annum.
The Offerors represent and warrant to the Underwriters that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of New Jersey.
A-2
If the foregoing is in accordance with the understanding of the
Underwriters of the agreement between the Underwriters and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
SEACOAST CAPITAL TRUST I
By: Seacoast Financial Services Corporation,
as Depositor
By:
----------------------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
SEACOAST FINANCIAL SERVICES CORPORATION
By:
----------------------------------------
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., LLC
By:
------------------------------------------------
Xxx X. Xxxxxxx
Chairman and Chief Executive Officer
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By:
------------------------------------------------
Xxxx X. Xxxxxxx
Managing Director
A-3
EXHIBIT B
The opinion of counsel to the Company to be delivered pursuant to Section
5(b)(i) of the Underwriting Agreement shall be substantially to the effect that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts, with
requisite corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and is
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended. Compass Bank for Savings is a savings bank organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts, with requisite corporate power and authority to own, lease and
operate its properties and conduct its business as described in the Registration
Statement. Nantucket Bank is a savings bank organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts, with
requisite corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement. Each of the
Company's other direct and indirect subsidiaries is organized, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation, with requisite corporate power and authority to own, lease and
operate its respective properties and conduct its business as described in the
Registration Statement, except where the failure to be in good standing would
not have a material adverse effect on the business, financial condition or
results operations of the Company and its subsidiaries, considered as one
enterprise.
2. The Company and each of its direct and indirect subsidiaries are
qualified to transact business as foreign corporations under the corporation
laws of each jurisdiction in which the Company or such subsidiary, as the case
may be, owns or leases property of a nature, has an office or transacts business
of a type that would make such qualification necessary, except where the failure
so to qualify would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries, considered as one enterprise.
3. The deposit accounts of Compass Bank for Savings and Nantucket Bank are
insured by the Savings Association Insurance Fund or Bank Insurance Fund of the
FDIC up to the maximum amount allowable by law, and, to such counsel's
knowledge, no proceedings for the termination or revocation of such insurance
are pending or threatened.
4. All of the issued and outstanding shares of capital stock of each of the
Company's direct or indirect subsidiaries have been duly and validly authorized
and issued and are fully paid and nonassessable and, to such counsel's
knowledge, are owned by the Company or one of its wholly-owned subsidiaries free
and clear of any security interests, liens, pledges, claims or other
encumbrances, except where the failure to own such shares free and clear of any
security interests, liens, pledges, claims or other encumbrances would not have
a material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, considered as one enterprise.
5. The authorized and outstanding capital stock of the Company as of the
date indicated is as set forth in the Prospectus under the heading
"Capitalization."
B-1
6. The Company has full corporate power and authority to execute, deliver
and perform the Underwriting Agreement, the Trust Agreement, the Guarantee
Agreement, the Indenture and the Expense Agreement (the "Operative Documents")
and to issue and perform its obligations under the Debentures as contemplated by
the Prospectus; the Underwriting Agreement has been duly authorized, executed
and delivered by the Company, and, assuming the due authorization, execution and
delivery thereof by the Trust and the Underwriters, the Underwriting Agreement
constitutes a legal, valid, and binding obligation of each of the Company and
the Trust, enforceable against each of the Company and the Trust in accordance
with its terms, except as enforceability of the Underwriting Agreement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by equitable principles limiting the
right to specific performance or other equitable relief and except as the
obligations of the Company under the indemnification and contribution provisions
of Section 6 of the Underwriting Agreement may be limited by laws or
unenforceable as against public policy, as to which no opinion is expressed.
7. 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 the Company and the Administrative Trustees enforceable against
the Company and the Administrative Trustees in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally and by general equity principles (whether considered in a
proceeding in equity or at law).
8. The Guarantee Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally and by
general equity principles (whether considered in a proceeding in equity or at
law).
9. The Expense Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally and by
general equity principles (whether considered in a proceeding in equity or at
law).
10. The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by general equity
principles (whether considered in a proceeding in equity or at law).
11. The Debentures have been duly authorized, executed and delivered by the
Company and, when duly authenticated in accordance with the Indenture and
delivered and paid for as contemplated by the Prospectus, will be valid and
binding obligations of the Company,
B-2
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by general equity
principles (whether considered in a proceeding in equity or at law).
12. Neither the Company nor the Trust is, and following the issuance of the
Preferred Securities and the consummation of the transactions contemplated by
the Operative Documents and the application of the proceeds therefrom as
described in the Prospectus, neither the Company nor the Trust will be, an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act.
13. The statements set forth in the Registration Statement under the
captions "Description of the Preferred Securities," "Description of the
Debentures," "Description of the Guarantee" and "Relationship Among the
Preferred Securities, the Debentures and the Guarantee," insofar as they purport
to describe the provisions of the laws referred to therein, fairly summarize the
legal matters described therein.
14. The statements of law or legal conclusions and opinions set forth in
the Registration Statement under the caption "Federal Income Tax Consequences,"
subject to the assumptions and conditions described therein, constitute such
counsel's opinion.
15. The Registration Statement was declared effective under the 1933 Act as
of the date and time specified in such opinion, any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b) and, to such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933 Act and no
proceedings therefor have been initiated or threatened by the Commission.
16. The Registration Statement (including the information required by Rule
430A, if applicable) and the Prospectus and any amendment or supplement thereto
(except for the financial statements and other financial and statistical data
included therein or omitted therefrom, as to which such counsel need express no
opinion), as of their respective effective or issue dates, complied as to form
in all material respects with the applicable requirements of the 1933 Act and
the 1933 Act Regulations.
17. The documents incorporated by reference in the Prospectus (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel expresses no opinion, and
except to the extent that any statement therein is modified or superseded in the
Prospectus), as of the dates they were filed with the Commission, complied as to
form in all material respects with the applicable requirements of the 1934 Act
and the 1934 Act Regulations.
18. Such counsel knows of no legal or governmental proceedings pending to
which the Company or any direct or indirect subsidiary is a party or of which
any property of the Company or any direct or indirect subsidiary is the subject
that are required to be disclosed in the Registration Statement or that would
affect the consummation of the transactions contemplated
B-3
in the Underwriting Agreement or the Indenture; and such counsel knows of no
such proceedings that are threatened or contemplated by governmental authorities
or threatened by others.
19. Such counsel knows of no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described in the
Registration Statement or to be filed as exhibits thereto other than those
described therein or filed or incorporated by reference as exhibits thereto, and
such instruments as are summarized in the Registration Statement are fairly
summarized in all material respects.
20. No approval, authorization, consent, registration, qualification or
other order of any public board or body is required in connection with the
execution and delivery of the Underwriting Agreement, the Trust Agreement, the
Guarantee Agreement, the Expense Agreement and the Indenture or the issuance and
sale of the Preferred Securities or the consummation by the Company of the other
transactions contemplated by the Underwriting Agreement, the Trust Agreement,
the Guarantee Agreement, the Expense Agreement or the Indenture, except such as
have been obtained under the 1933 Act, the 1934 Act and the Trust Indenture Act
or such as may be required under the blue sky or securities laws of various
states in connection with the offering and sale of the Preferred Securities.
21. To such counsel's knowledge, each of the Company, Compass Bank for
Savings and each other direct or indirect subsidiary of the Company has all
material licenses, permits and other governmental authorizations currently
required for the conduct of its business as presently conducted.
22. The execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and the Indenture, the
issue and sale of the Preferred Securities and the Debentures, the compliance by
the Company with the provisions of the Preferred Securities, the Debentures, the
Indenture, the Trust Agreement, the Guarantee Agreement, the Expense Agreement
and the Underwriting Agreement and the consummation of the transactions therein
contemplated will not conflict with or constitute a breach of, or default under,
(a) the articles of incorporation, charter or by-laws of the Company or any
direct or indirect subsidiary or (b) any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to such counsel to which either
the Company or any direct or indirect subsidiary is a party or by which any of
them or any of their respective properties may be bound except for such breaches
as would not have a material adverse effect on the business, financial condition
or results of operations of the Company and its subsidiaries considered as one
enterprise, nor will such action result in a violation on the part of the
Company or any direct or indirect subsidiary of any applicable law or regulation
or of any administrative, regulatory or court decree known to such counsel.
23. Counsel will supplementally provide a written statement that such
counsel has participated in the preparation of the Registration Statement and
the Prospectus and has reviewed the documents incorporated by reference in the
Prospectus, and no facts have come to the attention of such counsel to lead it
to believe (a) that the Registration Statement (including the information
required by Rule 430A, if applicable) or any amendment thereto (except for the
financial statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need not comment), at the time the
Registration Statement or any such
B-4
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading or (b) that the Prospectus or any amendment or supplement
thereto (except for the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need not
comment), at the time the Prospectus was issued, or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading or (c)
that the documents incorporated by reference in the Prospectus (except for the
financial statements and other financial or statistical data contained therein
or omitted therefrom, as to which such counsel need not comment, and except to
the extent that any statement therein is modified or superseded in the
Prospectus), as of the dates they were filed with the Commission, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
B-5
EXHIBIT C
The opinion of special Delaware counsel to the Company and the Trust to be
delivered pursuant to Section 5(b)(ii) 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 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
requisite power and authority to (i) own its properties and conduct its
business, all as described in the Prospectus, (ii) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a party,
(iii) purchase and hold the Debentures, and (iv) to issue and perform its
obligations under the Preferred Securities and the Common Securities.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Trustees and is enforceable against the Company and the Trustees
in accordance with its terms, except as such enforceability may be limited by
(i) bankruptcy, insolvency, receivership, liquidation, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) general principles of equity
(regardless of whether considered and applied in a proceeding in equity or at
law) and (iii) considerations of public policy or the effect of applicable law
relating to fiduciary duties.
4. Under the Delaware Act and the Trust Agreement, the Trust has the
requisite 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. The Preferred Securities have been duly authorized for issuance by the
Trust and, when issued, executed, authenticated and delivered in accordance with
the terms of the Trust Agreement against payment therefor as set forth in the
Underwriting Agreement, will be duly and validly issued and (subject to the
terms of the Trust Agreement) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust entitled to the benefits of the Trust
Agreement (subject to the limitations set forth in paragraph 3 above). The
holders of the Preferred Securities, as beneficial owners of the Trust, will be
entitled to the same limitations of personal liability as are extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such counsel may note
that such holders may be obligated to make certain payments as set forth in the
Trust Agreement.
6. The Common Securities have been duly authorized for issuance by the
Trust and, when issued, executed and delivered to the Company against payment
therefor in accordance with the terms of the Trust Agreement, will be duly and
validly issued undivided beneficial interests in the assets of the Trust
entitled to the benefits of the Trust Agreement (subject to the limitations set
forth in paragraph 3 above).
C-1
7. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and the Common Securities is not subject to any preemptive
or similar rights.
8. The issuance and sale by the Trust of the Preferred Securities and
Common Securities, the purchase by the Trust of the 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.
9. No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust solely in connection with of the issuance and sale of the Preferred
Securities and the Common Securities or the performance by the Trust of its
obligations under the Operative Documents to which it is a party.
10. Assuming that the Trust derives no income from or in connection with
sources within the State of Delaware and has no assets, activities (other than
maintaining the Delaware Trustee and the filing of documents with the Secretary
of State of the State of Delaware) or employees in the State of Delaware, the
holders of the Preferred Securities (other than those holders of Preferred
Securities who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely as a result
of their participation in the Trust, and the Trust will not be liable for any
income tax imposed by the State of Delaware.
C-2
EXHIBIT D
The opinion of counsel to the Trust Company to be delivered pursuant to
Section 5(b)(iii) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Trust Company is a Massachusetts trust company with trust powers,
duly organized, validly existing and in corporate good standing under the laws
of the Commonwealth of Massachusetts with all necessary power and authority to
execute and deliver, and to carry out and perform its obligations under, the
Indenture, the Trust Agreement and the Guarantee Agreement.
2. The execution, delivery and performance by the Trust Company, as
Property Trustee, of the Trust Agreement, the execution, delivery and
performance by the Trust Company, as Guarantee Trustee, of the Guarantee
Agreement and the execution, delivery and performance by the Trust Company, as
Indenture Trustee, of the Indenture have been duly authorized by all necessary
corporate action on the part of the Trust Company. The Trust Agreement
constitutes the legal, valid and binding obligation of the Property Trustee
acting in such capacity and is enforceable against the Property Trustee, in such
capacity in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, receivership or similar laws relating to the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
The Guarantee Agreement constitutes the legal, valid and binding obligation of
the Guarantee Trustee, acting in such capacity, and is enforceable against the
Guarantee Trustee, in such capacity, in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, receivership or similar laws relating
to the enforcement of creditors' rights generally , and by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law). The Indenture constitutes the legal, valid and binding
obligation of the Indenture Trustee and is enforceable against the Indenture
Trustee in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, receivership or similar laws relating to the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
3. The execution, delivery and performance of the Trust Agreement, the
Guarantee Agreement and the Indenture by the Property Trustee, the Guarantee
Trustee and the Indenture Trustee, respectively, do not conflict with or
constitute a breach of the charter or by-laws of the Trust Company.
4. No consent, approval or authorization of, or registration with or notice
to any federal or Massachusetts state banking authority having jurisdiction over
the Trust Company is required for the execution or delivery by the Trust Company
of the Trust Agreement, the Guarantee Agreement or Indenture or the performance
by the Trust Company of its duties thereunder as Property Trustee, Guarantee
Trustee or Indenture Trustee as the case may be (provided that we express no
opinion herein as to compliance with any federal or state securities laws that
may be applicable).
D-1
5. The Debentures delivered on the date hereof have been duly authenticated
by the Indenture Trustee in accordance with the terms of the Indenture (provided
that we express no opinion herein as satisfaction of any conditions precedent to
authorization and delivery under the terms of the Indenture).
D-2
EXHIBIT E
The opinion of counsel to the Delaware Trustee to be delivered pursuant to
Section 5(b)(iv) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Delaware Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the State of Delaware with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under, the Trust
Agreement.
2. The execution, delivery and performance by the Delaware Trustee of the
Trust Agreement have been duly authorized by all necessary corporate action on
the part of the Delaware Trustee. The Trust Agreement has been duly executed and
delivered by the Delaware Trustee and constitutes the legal, valid and binding
obligation of the Delaware Trustee, enforceable against the Delaware Trustee in
accordance with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
receivership or similar laws relating to the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3. The execution, delivery and performance of the Trust Agreement by the
Delaware Trustee do not conflict with or constitute a breach of the charter or
by-laws of the Delaware Trustee.
4. No consent, approval or authorization of, or registration with or notice
to any federal or state banking authority is required for the execution,
delivery or performance by the Delaware Trustee of the Trust Agreement.
E-1
