1
Exhibit 1.1
2,500,000 PREFERRED SECURITIES
CENTURY BANCORP CAPITAL TRUST
____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
Boston, Massachusetts
________ __, 1998
XXXXXX XXXXXXX INCORPORATED
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Century Bancorp, Inc., a Massachusetts corporation (the "Company") and its
financing subsidiary, Century Bancorp Capital Trust, a Delaware business trust
(the "Trust", and hereinafter together with the Company, the "Offerors"),
confirm their agreement with Xxxxxx Xxxxxxx Incorporated ("Xxxxxx Xxxxxxx") and
each of the other Underwriters, if any, named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any
Underwriters substituted as hereinafter provided in Section 11), for whom Xxxxxx
Xxxxxxx is acting as representative (in such capacity, Xxxxxx Xxxxxxx is herein
called the "Representative"), with respect to the sale by the Trust and the
purchase by the Underwriters, acting severally and not jointly, of an aggregate
of 2,500,000 of the Trust's ___% Cumulative Trust Preferred Securities, with a
liquidation amount of $10 per preferred security ("Preferred Securities"), to be
issued under the Trust Agreement (as hereinafter defined), the terms of which
are more fully described in the prospectus (as hereinafter defined) (the
aforementioned 2,500,000 Preferred Securities to be sold to the Underwriters
being referred to herein as the "Firm Preferred Securities"), and with respect
to the grant by the Trust to the Underwriters, acting severally and not jointly,
of the option described in Section 2(b) hereof to purchase therefrom all or any
part of an additional 375,000 Preferred Securities for the purpose of covering
over-allotments, if any. The Firm Preferred Securities and all or any part of
the Preferred Securities subject to the option described in Section 2(b) hereof
(the "Option Preferred Securities") are hereinafter collectively referred to as
the "Designated Preferred Securities." The words "you" and "your" refer to the
Representative of the Underwriters.
1. REPRESENTATIONS AND WARRANTIES OF THE OFFERORS.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters as of the date hereof, and as of the Closing
Date, as defined in Section 2(a) hereof, and the Option Closing Date, as defined
in Section 2(b) hereof, if any, as follows:
(a) A registration statement on Form S-2 (File No. 333-50843) with
respect to
2
the Designated Preferred Securities, the Guarantee (as defined in Section
2(d) hereof) and $28,750,000 aggregate principal amount of Debentures (as
defined in Section 2(d) hereof), including a prospectus subject to
completion, has been prepared by the Offerors in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
applicable Rules and Regulations (as defined below) of the Securities and
Exchange Commission (the "Commission") and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") and the rules and regulations
thereunder, and has been filed with the Commission; such amendments to such
registration statement, and such amended prospectuses subject to
completion, as may have been required prior to the date hereof have been
similarly prepared and filed with the Commission; and the Offerors will
file such additional amendments to such registration statement, and such
amended prospectuses subject to completion, as may hereafter be required.
Copies of such registration statement and each such amendment, each such
related prospectus subject to completion (collectively, the "Preliminary
Prospectuses" and individually, a "Preliminary Prospectus"), each document
incorporated by reference therein and each exhibit thereto have been
delivered to you. For purposes hereof, "Rules and Regulations" means the
rules and regulations adopted by the Commission under either the Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable. If the registration statement has been declared effective under
the Act by the Commission, the Company will prepare and promptly file with
the Commission, pursuant to subparagraph (1) or (4) of Rule 424(b) of the
Rules and Regulations under the Act or as part of a post-effective
amendment to the registration statement (including a final form of
prospectus), the information omitted from the registration statement
pursuant to Rule 430A(a) of the Rules and Regulations under the Act. If the
registration statement has not been declared effective under the Act by the
Commission, the Company will prepare and promptly file a further amendment
to the registration statement, including a final form of prospectus. The
term "Registration Statement" as hereinafter used in this Agreement shall
mean such registration statement, including financial statements, schedules
and exhibits in the form in which it became or becomes effective
(including, if the Company omitted information from the registration
statement pursuant to Rule 430A(a) of the Rules and Regulations under the
Act, the information deemed to be a part of the registration statement at
the time it became effective pursuant to Rule 430A(b) of the Rules and
Regulations under the Act) and, in the event of any amendment thereto after
the effective date of such registration statement, shall also mean (from
and after the effectiveness of such amendment) such registration statement
as so amended, together with any registration statement filed by the
Company pursuant to Rule 462(b) under the Act. The term "Prospectus" as
used in this Agreement shall mean the prospectus relating to the Designated
Preferred Securities as included in such registration statement at the time
it became or becomes effective, except that if any revised prospectus shall
be provided to the Underwriters by the Offerors for use in connection with
the offering of the Designated Preferred Securities that differs from the
Prospectus on file with the Commission at the time the registration
statement became or becomes effective (whether or not such revised
prospectus is required to be filed with the Commission pursuant to Rule
424(b)(3) of the Rules and Regulations under the Act), the term
"Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriters for
2
3
such use, together with the term sheet or abbreviated term sheet filed with
the Commission pursuant to Rule 424(b)(7) under the Act. Any reference
herein to the Registration Statement, the Prospectus, any amendment or
supplement thereto or any Preliminary Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein, and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or Prospectus shall be deemed to
refer to and include the filing of any document with the Commission deemed
to be incorporated by reference therein.
(b) Neither the Commission nor any state regulatory authority has
issued any order preventing or suspending the use of any Preliminary
Prospectus, at the time of filing thereof, or instituted proceedings for
that purpose, and each such Preliminary Prospectus, at the time of filing
thereof, has conformed in all material respects to the requirements of the
Act and the Rules and Regulations and, at the time of filing thereof, has
not included any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein not misleading
and at the time the Registration Statement became or becomes effective and
at all times subsequent thereto up to and including the Closing Date (as
hereinafter defined) and any Option Closing Date (as hereinafter defined),
and during such longer period as the Prospectus may be required to be
delivered in connection with sales by an Underwriter or a dealer, (i) the
Registration Statement and Prospectus, and any amendments or supplements
thereto, contained and will contain all material information required to be
included therein by the Act and the Rules and Regulations and conformed and
will conform in all material respects to the requirements of the Act and
the Rules and Regulations and the Trust Indenture Act (and the rules and
regulations thereunder), and (ii) neither the Registration Statement nor
the Prospectus, nor any amendment or supplement thereto included or will
include any untrue statement of a material fact or omitted or will omit to
state any 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. The documents incorporated by reference in the
Registration Statement, the Prospectus, any amendment or supplement thereto
or any Preliminary Prospectus, when they became or become effective under
the Act or were or are filed with the Commission under the Exchange Act,
conformed or will conform in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the Rules and Regulations,
and as of the date any such document was or is filed with the Commission
under the Exchange Act such document did not, and on the Closing Date and
on any Option Closing Date will not, omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(c) (i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of The Commonwealth of
Massachusetts and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act"). Each of the
subsidiaries of the Company (collectively, the "Subsidiaries" and
individually, a "Subsidiary") has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of
organization. The Company
3
4
and each of the Subsidiaries are duly qualified and licensed as foreign
corporations and in good standing in each jurisdiction in which their
respective operations requires such qualification or licensing, except
where the failure to be so qualified would not have a material adverse
effect on the condition, financial or otherwise, or on the business
affairs, position, prospects, value, operation, properties, business or
results of operation of the Company and the Subsidiaries taken as a whole
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"). The Company and each of the Subsidiaries have all
requisite power and authority, and have obtained any and all necessary
authorizations, approvals, orders, licenses, certificates, franchises and
permits of and from all governmental or regulatory officials and bodies to
own or lease their respective properties and conduct their respective
businesses as described in the Prospectus (collectively, "Government
Approvals"), except where the failure to so obtain any such Government
Approval would not have a Material Adverse Effect; the Company and each of
the Subsidiaries are and have been doing business in compliance with all
such Government Approvals, except where the failure to so comply would not
have a Material Adverse Effect; and neither the Company nor any of the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Government Approvals. All of the
outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable and
are owned by the Company free and clear of all liens, encumbrances and
security interests, and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into, or exchange any securities for shares of capital stock of
or ownership interests in any of the Subsidiaries are outstanding. The
Company's only bank subsidiary is Century Bank and Trust Company (the
"Bank"). The deposit accounts of the Bank are insured by the Bank Insurance
Fund administered by the Federal Deposit Insurance corporation (the "FDIC")
up to the maximum amount provided by law and no proceedings for the
modification, termination or revocation of any such insurance are pending
or threatened.
(ii) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Business Trust
Act with the power and authority (trust and other) to issue and sell its
common securities (the "Common Securities") to the Company pursuant to the
Trust Agreement, to issue and sell the Designated Preferred Securities, to
enter into and perform its obligations under this Agreement and to
consummate the transactions herein contemplated; the Trust has conducted
and will conduct no business other than the transactions contemplated by
this Agreement and described 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 and 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; the Trust is not a party to or subject to any action, suit or
proceeding of any nature; the Trust is not, and at the Closing Date or any
Option Closing Date will not be, to the knowledge of the Offerors,
classified as an association taxable as a corporation for United States
federal income tax purposes; and the Trust is, and as of the Closing Date
or any Option Closing Date will be, treated as a
4
5
consolidated subsidiary of the Company pursuant to generally accepted
accounting principles.
(d) (i) The capital stock of the Company and the equity securities of
the Trust, the Debentures and the Guarantee conform to the description
thereof contained in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and neither Offeror is
a party to or bound by any instrument, agreement or other arrangement
(except as disclosed in the Prospectus) providing for it to issue any
capital stock, rights, warrants, options or other securities, except for
this Agreement. All issued and outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly
issued and are fully paid and non-assessable and were not issued in
violation of any preemptive rights or other rights to subscribe for or
purchase securities.
(ii) (A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in
accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action required to be
taken by the Offerors for the authorization, issuance, sale and
delivery of the Designated Preferred Securities in accordance with
such terms and conditions has been validly and sufficiently taken. The
Designated Preferred Securities, when delivered in accordance with
this Agreement, will be duly and validly issued and outstanding, will
be fully paid and nonassessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the Trust
Agreement, will not be issued in violation of or subject to any
preemptive or similar rights, and will conform in all material
respects to the description thereof in the Registration Statement, the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the Trust Agreement. None of the
Designated Preferred Securities, immediately prior to delivery, will
be subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive rights,
claim, equity or other title defect.
(B) The Debentures have been duly and validly authorized,
and, when duly and validly executed, authenticated and issued as
provided in the Indenture and delivered to the Trust pursuant to the
Trust Agreement, will constitute valid and legally binding obligations
of the Company entitled to the benefits of the Indenture and will
conform in all material respects to the description thereof contained
in the Prospectus.
(C) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the guarantee trustee
for the benefit of the Trust, will constitute a valid and legally
binding obligation of the Company and will conform in all material
respects to the description thereof contained in the Prospectus.
5
6
(D) The Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly and validly authorized, and, when
duly and validly executed and delivered to the Company, will
constitute a valid and legally binding obligation of the Company and
will conform in all material respects to the description thereof
contained in the Prospectus.
(e) The audited and unaudited consolidated financial statements of
the Company, together with the notes and schedules thereto, included in the
Registration Statement, each Preliminary Prospectus and the Prospectus
fairly present the financial position and the results of operations,
changes in cash flows and changes in stockholders' equity of the Company at
the respective dates and for the respective periods to which they apply;
and each of such audited consolidated financial statements has been
prepared in conformity with generally accepted accounting principles and
the Rules and Regulations, consistently applied throughout the periods
involved, all adjustments necessary for a fair presentation of results for
such periods have been made and such unaudited consolidated financial
statements have been prepared on a basis substantially consistent with that
of such audited consolidated financial statements. Except as described in
the Prospectus, there has been no change or development involving a
Material Adverse Effect since the date of the consolidated financial
statements included in any of the Preliminary Prospectuses, the Prospectus
and the Registration Statement, and the outstanding debt, the property,
both tangible and intangible, and the business of the Company and each of
the Subsidiaries conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus. The
summary and selected consolidated financial and statistical data included
in the Registration Statement and the Prospectus present fairly the
information shown therein or incorporated by reference and have been
compiled on a basis consistent with the unaudited and audited consolidated
financial statements included therein. The Company's internal accounting
controls are sufficient to cause the Company to comply with the Foreign
Corrupt Practices Act of 1977, as amended. Neither the Company nor any of
the Subsidiaries has any material contingent obligation which is not
disclosed in the Registration Statement.
(f) KPMG Peat Marwick LLP ("KPMG"), whose reports are filed with the
Commission as a part of the Registration Statement, are independent
certified public accountants as required by the Act and the Rules and
Regulations.
(g) (i) the Company and each of the Subsidiaries have paid all
federal, state, local and foreign taxes for which they are respectively
liable and which are due and payable, including, but not limited to,
withholding taxes and amounts payable under Chapters 21 through 24 of the
Internal Revenue Code of 1986, as amended, and (ii) none of the Company or
any Subsidiary has any tax deficiency or claims outstanding, assessed or,
to its knowledge, proposed against it.
(h) No transfer tax, stamp duty or other similar tax is payable by or
on behalf of the Underwriters in connection with (i) the issuance by the
Trust of the Designated Preferred Securities, (ii) the purchase by the
Underwriters of the Designated Preferred Securities, or
6
7
(iii) the consummation by the Offerors of any of their respective
obligations under this Agreement.
(i) The Offerors and each of the Subsidiaries maintain insurance of
the types and in the amounts which are adequate for their businesses, all
of which insurance is in full force and effect.
(j) Except as disclosed in the Prospectus, there is no action, suit,
proceeding, inquiry, investigation, litigation or governmental proceeding,
domestic or foreign, pending or, to the Offerors' knowledge, threatened
against (or currently existing or previously occurring facts or
circumstances that provide a basis for the same), or involving the
properties or business of the Offerors or any of the Subsidiaries, that (i)
questions the validity of the capital stock or equity securities of the
Offerors or this Agreement or of any action taken or to be taken by the
Offerors pursuant to or in connection with this Agreement, (ii) is required
to be disclosed in the Registration Statement that is not so disclosed (and
such proceedings, if any, as are summarized in the Registration Statement
are accurately summarized in all material respects), or (iii) would have a
Material Adverse Effect.
(k) Each of the Offerors has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided for
herein and therein; and this Agreement has been duly authorized, executed
and delivered by each of the Offerors. This Agreement, assuming it has been
duly authorized, executed and delivered by the Underwriters, constitutes a
legal, valid and binding agreement of the each of the Offerors enforceable
against each of the Offerors in accordance with its terms. Each of the
Indenture, the Trust Agreement, the Guarantee and the Expense Agreement has
been duly authorized by the Company, and, when executed and delivered by
the Company on the Closing Date, each of said agreements will constitute a
valid and legally binding obligation of the Company and will be enforceable
against the Company in accordance with its terms. Each of the Indenture,
the Trust Agreement and the Guarantee has been duly qualified under the
Trust Indenture Act and will conform to the description thereof contained
in the Prospectus. The execution and delivery of this Agreement by the
Offerors, their performance hereunder, their consummation of the
transactions contemplated herein and the conduct of their business and that
of each of the Subsidiaries as described in the Registration Statement, the
Prospectus and any amendments or supplements thereto does not and will not
conflict with in any material respect or result in any breach or violation
of any of the material terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge, claim,
encumbrance, pledge, security interest, defect or other restriction on
equity of any kind whatsoever upon, any property or assets (tangible or
intangible) of either Offeror or any of the Subsidiaries, pursuant to the
terms of (i) the corporate charter, operating agreement or by-laws of the
Company or any of the Subsidiaries or the Trust Agreement, the Guarantee or
the Indenture, (ii) any license, contract, indenture, mortgage, deed of
trust, voting trust agreement, stockholders agreement, note, loan or credit
agreement or any other agreement or instrument to which either Offeror or
any of the Subsidiaries is a party or by which any of them is or may be
bound or to which any of their respective properties or assets (tangible
7
8
or intangible) is or may be subject or (iii) any statute, judgment, decree,
order, rule or regulation applicable to either Offeror or any of the
Subsidiaries of any arbitrator, court, regulatory body or administrative
agency or other governmental agency or body, domestic or foreign, having
jurisdiction over either Offeror or any of the Subsidiaries or any of their
respective activities or properties.
(l) No consent, approval, authorization or order of, and no filing
with, any court, regulatory body, government agency or other body, domestic
or foreign, is required for the issuance of the Designated Preferred
Securities pursuant to the Prospectus and the Registration Statement, or
the performance of this Agreement, the Trust Agreement, the Guarantee or
the Indenture and the transactions contemplated thereby, except such as
have been or may be obtained under the Act, the Exchange Act or the Rules
and Regulations or may be required under state securities or Blue Sky laws
in connection with the Underwriters' purchase and distribution of the
Designated Preferred Securities.
(m) All executed agreements which are filed as exhibits to the
Registration Statement to which either Offeror or any of the Subsidiaries
is a party or by which any of them may be bound or to which any of their
respective assets, properties or businesses may be subject have been duly
and validly authorized, executed and delivered by such Offeror or such
Subsidiaries, and, assuming due authorization, execution and delivery by
the other parties thereto, constitute the legal, valid and binding
agreements of such Offeror and such Subsidiaries enforceable against such
Offeror and such Subsidiaries in accordance with their respective terms
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting enforcement of creditors' rights and the
application of equitable principles in any action, legal or equitable, and
except as rights to indemnity or contribution may be limited by applicable
law). The descriptions in the Registration Statement of contracts and other
documents are accurate in all material respects and fairly present the
information required to be shown with respect thereto by Form S-2, and
there are no contracts or other documents that are required by the Act to
be described in the Registration Statement or filed as exhibits to the
Registration Statements that are not described or filed as required, and
the exhibits that have been filed are complete and correct copies of the
documents of which they purport to be copies.
(n) Subsequent to the respective dates as of which information is set
forth in the Registration Statement and Prospectus, and except as may
otherwise be indicated or contemplated herein or therein, neither Offeror
nor any of the Subsidiaries has (i) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed money, (ii)
entered into any transaction which could reasonably be expected to have a
Material Adverse Effect or (iii) declared or paid any dividend or made any
other distribution on or in respect of its capital stock or equity
securities.
(o) Except as disclosed in the Registration Statement, (i) neither of
the Offerors is in violation of its corporate charter, bylaws or other
governing documents (including
8
9
without limitation the Trust Agreement), and (ii) no material default
exists in the due performance and observance of any term, covenant or
condition of any license, contract, indenture, mortgage, installment sale
agreement, lease, deed of trust, voting trust agreement, stockholders
agreement, note, loan or credit agreement or any other agreement or
instrument evidencing an obligation for borrowed money, or any other
agreement or instrument to which either Offeror or any of the Subsidiaries
is a party or by which either Offeror or any of the Subsidiaries may be
bound or to which any of the property or assets (tangible or intangible) of
either Offeror or any of the Subsidiaries is subject or affected.
(p) The Offerors and each of the Subsidiaries have a generally
satisfactory employer-employee relationship with their respective employees
and are in compliance with all federal, state, local, and, where
applicable, foreign, laws and regulations respecting employment and
employment practices, terms and conditions of employment and wages and
hours, except where the failure to so comply would not have a Material
Adverse Effect. To the Offerors' knowledge, there are no pending
investigations involving the Offerors or any of the Subsidiaries by the
United States Department of Labor or any other governmental agency
responsible for the enforcement of such federal, state, local or foreign
laws and regulations. To the Offerors' knowledge, there is no unfair labor
practice charge or complaint against either Offeror or any of the
Subsidiaries pending before the National Labor Relations Board or any
strike, picketing, boycott, dispute, slowdown or stoppage pending or
threatened against or involving either Offeror or any of the Subsidiaries,
and no such strike, picketing, boycott, dispute, slowdown or stoppage has
ever occurred. No representation question exists respecting the employees
of either Offeror or any of the Subsidiaries, and no collective bargaining
agreement or modification thereof is currently being negotiated by either
Offeror or any of the Subsidiaries. There are no expired or existing
collective bargaining agreements of either Offeror or any of the
Subsidiaries.
(q) Neither Offeror nor any of the Subsidiaries has incurred any
liability arising under or as a result of any breach of the provisions of
the Act.
(r) Except as disclosed in the Prospectus, neither Offeror nor any of
the Subsidiaries maintains, sponsors or contributes to any program or
arrangement that is an "employee pension benefit plan", an "employee
welfare benefit plan", or a "multiemployer plan" (collectively, the "ERISA
Plans") as such terms are defined in Sections 3(2), 3(1) and 3(37),
respectively, of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). With respect to any ERISA Plan that an Offeror or any of
the Subsidiaries, now or at any time previously, maintains or contributes
to, all applicable federal laws and regulations have been complied with,
except for such instances of noncompliance which, either singly or in the
aggregate, would not have a Material Adverse Effect. Neither Offeror nor
any of the Subsidiaries has ever completely or partially withdrawn from a
"multiemployer plan."
(s) The Offerors and the Subsidiaries have complied in all material
respects with all federal, state and local statutes, regulations,
ordinances and rules applicable to the
9
10
ownership and operation of their properties or the conduct of their
businesses as described in and contemplated by the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and as currently being conducted.
(t) Each Offeror maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) The Offerors have not distributed and will not distribute prior
to the Closing Date any prospectus in connection with the Offering, other
than a Preliminary Prospectus, the Prospectus, the Registration Statement
and the other materials permitted by the 1933 Act and the 1933 Act
Regulations and reviewed by the Underwriters.
(v) No holders of any equity securities of the Offerors or of any
options, warrants or other convertible or exchangeable securities of the
Offerors exercisable for or convertible or exchangeable for equity
securities of the Offerors have the right (except as may have been waived),
to include any securities issued by the Company in the Registration
Statement or any registration statement to be filed by the Company within
180 days of the date hereof or to require the Company or the Trust to file
a registration statement under the Act during such 180 day period.
(w) Neither Offeror has taken or will take, directly or indirectly
(except for any action that may be taken by the Underwriters), any action
designed to or which has constituted or which might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of either Offeror to
facilitate the sale or resale of the Designated Preferred Securities or
otherwise.
(x) Except to the extent disclosed in the Prospectus, (i) the
Offerors and each of the Subsidiaries own or possess, or have a license or
other right to use, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), technology, trademarks, service marks and trade names,
together with all applications for any of the foregoing, currently used or
held for use by them in connection with their respective businesses, except
where the failure to own or possess, alone or in aggregate, would not have
a Material Adverse Effect on the Offerors, (ii) neither the Offerors nor
any of the Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which has not been finally resolved and (iii) except as set forth
in the Registration Statement, neither the Offerors nor any of the
Subsidiaries is obligated or under any liability whatsoever to make any
material
10
11
payments by way of royalties, fees or otherwise to any owner or licensee
of, or other claimant to, any patent, patent right, license, invention,
trademark, service xxxx, trade name, copyright, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), technology or other
intangible asset, with respect to the use thereof or in connection with the
conduct of its business or otherwise.
(y) The Offerors and each of the Subsidiaries have good and
marketable title to, or valid and enforceable leasehold estates in, all
items of real and personal property stated in the Prospectus (including the
financial statements included or incorporated by reference therein) to be
owned or leased by them, free and clear of all liens, charges, claims,
encumbrances, pledges, security interests, defects or other restrictions on
equity of any kind whatsoever, other than (i) those referred to in the
Prospectus (including such financial statements), (ii) liens for taxes not
yet due and payable and (iii) mechanics, materialmen, warehouse and other
statutory liens arising in the ordinary course of business which, either
individually or in the aggregate, do not have a Material Adverse Effect.
(z) Except as described in the Prospectus under "Underwriting" and on
the cover page thereof, there are no claims, payments, issuances,
arrangements or understandings for services in the nature of a finder's or
origination fee with respect to the sale of the Designated Preferred
Securities hereunder or any other arrangements, agreements, understandings,
payments or issuance with respect to the Offerors or any of the
Subsidiaries or any of their respective officers, directors, employees or
affiliates that may affect the Underwriters' compensation, as determined by
the National Association of Securities Dealers, Inc. ("NASD").
(aa) The Preferred Securities have been approved for listing on the
Nasdaq Stock Market, Inc.'s National Market System (the "NASDAQ-NM") under
the symbol "CNBKP" subject to official notice of issuance.
(ab) The Company is not an "investment company" or an "affiliated
person" or "promoter" of, or "principal Underwriters" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended (the "1940 Act"), or subject to regulation under the 1940 Act.
(ac) Any certificate signed by any officer of either Offeror and
delivered to the Underwriters or to the Underwriters' Counsel (as
hereinafter defined) shall be deemed a representation and warranty by such
Offeror to the Underwriters as to the matters covered thereby.
(ad) There are no contractual encumbrances or restrictions or material
legal restrictions on the ability of any of the Subsidiaries (i) to pay
dividends or make any other distributions on its capital stock or to pay
any indebtedness owed to the Offerors, (ii) to make any loans or advances
to, or investments in, the Offerors or (iii) to transfer any of its
property
11
12
or assets to the Offerors.
2. PURCHASE, SALE AND DELIVERY OF THE DESIGNATED PREFERRED SECURITIES;
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth,
the Offerors hereby agree that the Trust shall issue and sell the Firm
Preferred Securities to the several Underwriters, and each Underwriter,
severally and not jointly, agrees to purchase that number of Firm Preferred
Securities set forth in Schedule A opposite its name plus any additional
number of Firm Preferred Securities that such Underwriter may become
obligated purchase pursuant to the provisions of Section 11 hereof. The
time and date of payment for and delivery of the Firm Preferred Securities
is herein called the "Closing Date." Because the proceeds from the sale of
the Firm Preferred Securities will be used to purchase from the Company its
Subordinated Debentures (as described in the Prospectus), the Company shall
pay to the Underwriters a commission of $_____ per Firm Preferred Security
purchased (the "Firm Preferred Securities Commission").
(b) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained and upon not less than two
business days' notice from the Representative of the Underwriters, for a
period of thirty days from the effective date of this Agreement, the Trust
grants to the Underwriters an option to purchase up to 375,000 Option
Preferred Securities. Such option is granted solely for the purpose of
covering over-allotments in the sale of Firm Preferred Securities and is
exercisable by written notice to the Trust within 30 days after the Closing
Date. Option Preferred Securities shall be purchased severally for the
account of the Underwriters in proportion to the number of Firm Preferred
Securities set forth opposite the name of such Underwriters in Schedule A
hereto. The time and date of delivery of any of the Option Preferred
Securities is herein called the "Option Closing Date". Because the proceeds
from the sale of the Option Preferred Securities will be used to purchase
from the Company its Subordinated Debentures (as described in the
Prospectus), the Company shall pay to the Underwriters a commission of
$_____ per Option Preferred Security purchased (the "Option Preferred
Securities Commission"). The respective purchase obligations of each
Underwriter with respect to the Option Preferred Securities may be adjusted
by the Representative so that no Underwriter shall be obligated to purchase
Option Preferred Securities other than in 100 unit increments. The price of
both the Firm Preferred Securities and any Option Preferred Securities
shall be $10 per Preferred Security.
(c) Payment of the purchase price and Firm Preferred Securities
Commission and Option Preferred Securities Commission for, and delivery of
certificates for, the Firm Preferred Securities and the Option Preferred
Securities shall be made on each of the Closing Date and the Option Closing
Date, respectively, by wire transfer of immediately available funds,
payable to the order of the Trust, at the offices of Xxxxxx Xxxxxxx at Xxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or at such other place as shall be
agreed upon by the
12
13
Representative and the Offerors or, if mutually agreed to by the
Representative and the Offerors, by wire transfer, upon delivery of
certificates (in form and substance satisfactory to the Representative)
representing such securities to the Representative. Delivery and payment
for the Firm Preferred Securities shall be made at 10:00 a.m. (Eastern
Time) on the third business day following the public offering, or at such
other time and date as shall be agreed upon by the Representative and the
Trust. In the event that any or all of the Option Preferred Securities are
purchased by the Underwriters, the date and time at which certificates for
Option Preferred Securities are to be delivered shall be determined by the
Representative and the Trust but shall not be earlier than three nor later
than ten full business days after the exercise of such option, nor in any
event prior to the Closing Date. Certificates for the Firm Preferred
Securities and the Option Preferred Securities, if any, shall be in
definitive, fully registered form, shall bear no restrictive legends and
shall be in such denominations and registered in such names as the
Representative may request in writing at least two (2) business days prior
to the Closing Date or the Option Closing Date, as applicable. The
certificates for the Firm Preferred Securities and the Option Preferred
Securities, if any, shall be made available to the Representative at such
office or such other place as the Representative may designate for
inspection and packaging not later than 9:30 a.m. (Eastern Time) on the
last business day prior to the Closing Date or the Option Closing Date, as
applicable.
(d) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement
among State Street Bank and Trust Company, as Property Trustee, Wilmington
Trust Company, as Delaware Trustee, the Administrative Trustees named
therein (collectively, the "Trustees"), and the Company, in substantially
the form heretofore delivered to the Underwriters, said Agreement being
hereinafter referred to as the "Trust Agreement." In connection with the
issuance of the Designated Preferred Securities, the Company proposes (i)
to issue its Subordinated Debentures (the "Debentures") pursuant to an
Indenture, dated as of ___________, 1998, between the Company and State
Street Bank and Trust Company, as debenture trustee (the "Indenture") and
(ii) to guarantee certain payments on the Designated Preferred Securities
pursuant to a Guarantee Agreement between the Company and State Street Bank
and Trust Company, as guarantee trustee (the "Guarantee"), to the extent
described therein.
3. PUBLIC OFFERING OF THE DESIGNATED PREFERRED SECURITIES.
As soon after the Registration Statement becomes effective as the
Underwriters deem advisable, the Underwriters shall make a public offering of
the Designated Preferred Securities at the price and upon the other terms set
forth in the Prospectus. The Underwriters may from time to time thereafter
reduce the public offering price and change the other selling terms, provided
the proceeds to the Trust shall not be reduced as a result of such reduction or
change. 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.
13
14
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
The Offerors jointly and severally agree with each of the Underwriters as
follows:
(a) The Offerors will use their best efforts to cause the
Registration Statement and any amendment thereof, if not effective at the
time and date that this Agreement is executed and delivered by the parties
hereto, to become effective as promptly as possible; they will notify the
Representative, promptly after they shall receive notice thereof, of the
time when the Registration Statement or any subsequent amendment to the
Registration Statement has become effective or any supplement to the
Prospectus has been filed; if the Offerors omitted information from the
Registration Statement at the time it was originally declared effective in
reliance upon Rule 430A(a), the Offerors will provide evidence satisfactory
to the Representative that the Prospectus contains such information and has
been filed, within the time period prescribed, with the Commission pursuant
to subparagraph (1) or (4) of Rule 424(b) of the Rules and Regulations
under the Act or as part of a post-effective amendment to such Registration
Statement as originally declared effective which is declared effective by
the Commission; if for any reason the filing of the final form of
Prospectus is required under Rule 424(b)(3) of the Rules and Regulations
under the Act, they will provide evidence satisfactory to the
Representative that the Prospectus contains such information and has been
filed with the Commission within the time period prescribed; they will
notify the Representative promptly of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus
or for additional information; promptly upon the Representative's request,
they will prepare and file with the Commission any amendments or
supplements to the Registration Statement or Prospectus which, in the
opinion of counsel for the Underwriters ("Underwriters' Counsel"), may be
necessary or advisable so as to comply with all applicable laws and
regulations (including, without limitation, Section 11 under the Act and
Rule 10b-5 under the Exchange Act) in connection with the distribution of
the Designated Preferred Securities by the Underwriters; they will promptly
prepare and file with the Commission, and promptly notify the
Representative of the filing of, any amendments or supplements to the
Registration Statement or Prospectus which may be necessary to correct any
statements or omissions, if, at any time when a prospectus relating to the
Designated Preferred Securities is required to be delivered under the Act,
any event shall have occurred as a result of which the Prospectus or any
other prospectus relating to the Designated Preferred Securities as then in
effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; in case
any Underwriter is required so as to comply with all applicable laws and
14
15
regulations (including, without limitation, Section 11 under the Act and
Rule 10b-5 under the Exchange Act) to deliver a prospectus nine months or
more after the effective date of the Registration Statement in connection
with the sale of the Designated Preferred Securities, they will prepare
promptly upon request, but at the expense of the Underwriters, such
amendment or amendments to the Registration Statement and such prospectus
or prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act; they will file no amendment or
supplement to the Registration Statement or Prospectus (other than any
document required to be filed under the Exchange Act that upon filing is
deemed incorporated therein by reference) which shall not previously have
been submitted to the Representative a reasonable time prior to the
proposed filing thereof or to which you shall reasonably object in writing
or which is not in compliance with the Act and the Rules and Regulations
under the Act and until the distribution of the Designated Preferred
Securities pursuant to the Prospectus has been completed, the Offerors will
furnish to the Representative at or prior to the filing thereof a copy of
any document that upon filing is deemed to be incorporated by reference in
the Registration Statement or Prospectus.
(b) The Offerors will advise the Representative, promptly after they
shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of the
Registration Statement or of the initiation or threat of any proceeding for
that purpose; and they will promptly use their best efforts to prevent the
issuance of any stop order or to obtain their withdrawal at the earliest
possible moment if such stop order should be issued.
(c) The Offerors will use their best efforts to qualify the
Designated Preferred Securities for offering and sale under the securities
laws of such jurisdictions as the Representative may designate and to
continue such qualifications in effect for so long as may be required for
the purposes of the distribution of the Designated Preferred Securities,
except that either Offeror shall not be required in connection therewith or
as a condition thereof to qualify as a foreign corporation or to execute a
general consent to service of process in any jurisdiction. In each
jurisdiction in which the Designated Preferred Securities shall have been
qualified as above provided, the Offerors will make and file such
statements and reports in each year as are or may be reasonably required by
the laws of such jurisdiction.
(d) The Offerors will furnish to the Representative, as soon as
available, copies of the Registration Statement (as filed in XXXXX format,
including exhibits, with the commission's confirmation of filing), each
Preliminary Prospectus, the Prospectus and any amendment or supplements to
such documents, including any prospectus prepared to permit compliance with
Section 10(a)(3) of the Act, all in such quantities as you may from time to
time reasonably request.
(e) The Offerors will make generally available to their
securityholders as soon as practicable, but in any event not later than the
45th day following the end of the fiscal quarter first occurring after the
first anniversary of the effective date of the Registration Statement, an
earnings statement (which will be in reasonable detail but need not be
audited)
15
16
complying with the provisions of Section 11(a) of the Act and covering a
twelve-month period beginning after the effective date of the Registration
Statement.
(f) For five years from the date hereof, the Offerors shall furnish
to the Representative copies of all reports and communications (financial
or otherwise) furnished by the Offerors to the holders of the Designated
Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission or with any national
securities exchange or the NASDAQ-NM and such other documents, reports and
information concerning the business and financial conditions of the
Offerors as the Representative may reasonably request. During such five
year period the Offerors' financial statements shall be on a consolidated
basis to the extent that the accounts of the Offerors and the Subsidiaries
are consolidated, and shall be accompanied by similar financial statements
for any Subsidiary which is not so consolidated.
(g) The Offerors will apply the net proceeds from the sale of the
Designated Preferred Securities being sold by it in the manner set forth
under the caption "Use of Proceeds" in the Prospectus.
(h) The Offerors will maintain a transfer agent and a registrar
(which may be the same entity as the transfer agent) for the Preferred
Securities.
(i) If at any time during the 90-day period after the Registration
Statement becomes effective, any publication or event relating to or
affecting either Offeror shall occur as a result of which in your opinion
the market price of the Preferred Securities has been or is likely to be
materially affected (regardless of whether such publication or event
necessitates a supplement to or amendment of the Prospectus), the Offerors
will, after written notice from the Representative advising the Offerors to
the effect set forth above, forthwith prepare, consult with the
Representative concerning the substance of and disseminate a press release
or other public statement, reasonably satisfactory to the Representative,
responding to or commenting on such publication or event, consistent with
past practice.
(j) For a period ending 180 days from the date of the Prospectus, the
Offerors will not, without your prior written consent, directly or
indirectly, offer for sale, sell or agree to sell or otherwise dispose of
any Preferred Securities other than pursuant to this Agreement, any other
beneficial interests in the assets of the Trust or any securities of the
Trust or the Company that are substantially similar to the Designated
Preferred Securities or the Debentures, including any guarantee of such
beneficial interests or substantially similar securities, or securities
convertible into or exchangeable for or that represent the right to receive
any such beneficial interest or substantially similar securities.
5. PAYMENT OF EXPENSES.
(a) Subject to Section 5(b), the Company hereby agrees to pay on each
of the Closing Date and the Option Closing Date (to the extent not paid on
the Closing Date) all
16
17
expenses and fees (other than fees of Underwriters' Counsel, except as
provided in (iii), (v) and (vii) below) incident to the performance of the
obligations of the Offerors under this Agreement, including, without
limitation, (i) the fees and expenses of accountants and counsel for the
Offerors; (ii) all costs and expenses incurred in connection with the
preparation, duplication, printing, filing (including the filing fees of
the Commission), mailing (including postage with respect thereto) and
delivery of the Registration Statement, the Preliminary Prospectuses and
the Prospectus and any amendments and supplements thereto, including the
cost of all copies thereof supplied to the Representative in quantities as
hereinabove stated, (iii) all costs and expenses incurred in connection
with the printing, mailing and delivery of this Agreement, the Selected
Dealer Agreements, the Agreement Among Underwriters, Underwriters'
Questionnaires, Underwriters' Powers of Attorney and related documents,
including the cost of all copies thereof supplied to the Underwriters in
quantities as hereinabove stated, (iv) the printing, engraving, issuance
and delivery of the Designated Preferred Securities, including any transfer
or other taxes payable thereon, (v) the qualification of the Designated
Preferred Securities under state or foreign securities or Blue Sky laws,
including the costs of printing and mailing a Blue Sky Memorandum and any
supplements or amendments thereto and disbursements and fees of
Underwriters' Counsel, in connection therewith, (vi) fees and expenses of
the Trust's transfer agent, (vii) fees and expenses incurred in connection
with the review by the NASD of certain of the matters set forth in this
Agreement, and (viii) the fees and expenses incurred in connection with the
listing of the Designated Preferred Securities on the NASDAQ-NM and any
other exchange.
(b) In connection with the Offering, the Offerors agree to reimburse
the Underwriters up to a limit of $20,000 for their out of pocket expenses
("Reimbursable Expenses"), including: (i) their out-of-pocket expenses in
connection with the Registration Statement and related documentation; (ii)
the cost of advertising the Offering; and (iii) the Underwriters' travel
and promotional expenses. To the extent the Reimbursable Expenses exceed
the $20,000 limit, the Underwriters will bear their own out-of-pocket
expenses.
(c) If this Agreement is terminated by the Representative in
accordance with the provisions of Section 6, Section 10(b) or Section 12,
or if the Offerors shall terminate this Agreement under Section 10(a),
unless the basis upon which the Representative terminates this Agreement
results from the default or omission of any Underwriter, the Company shall
reimburse and indemnify the Underwriters for (i) all of their reasonable
out-of-pocket expenses up to $75,000, including the fees and disbursements
of Underwriters' Counsel, plus (ii) the Blue Sky fees and expenses
identified in Section 5(a)(v) above.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters hereunder shall be subject to the
continuing accuracy of the representations and warranties of the Offerors herein
as of the date hereof and as of the Closing Date and the Option Closing Date, if
any, as if they had been made on and as of the Closing Date or the Option
Closing Date, as the case may be; the accuracy on and as of the Closing Date or
Option Closing Date, if any, of the statements of officers of the Offerors made
pursuant to the
17
18
provisions hereof; and the performance by the Offerors on and as of the Closing
Date and the Option Closing Date, if any, of their respective covenants and
obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Eastern Time, on the date of this Agreement or such later
date and time as shall be consented to in writing by the Representative,
and, at the Closing Date and the Option Closing Date, if any, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
shall be pending or 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 Underwriters' Counsel. If the Offerors have
elected to rely upon Rule 430A of the Rules and Regulations under the Act,
the price of the Designated Preferred Securities and any other information
previously omitted from the effective Registration Statement pursuant to
such Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) of the Rules and Regulations under the Act within
the prescribed time period, and, prior to the Closing Date, the Offerors
shall have provided evidence satisfactory to the Representative of such
timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with
the requirements of Rule 430A of the Rules and Regulations under the Act.
(b) The Representative shall not have advised the Offerors that the
Registration Statement, or any amendment thereto, contains an untrue
statement of fact that, in the Representative's opinion or in the opinion
of Underwriters' Counsel, is material, or omits to state a fact that, in
the Representative's opinion or in the opinion of Underwriters' Counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading, or that the Prospectus, or any
supplement thereto, contains an untrue statement of fact that, in the
Representative's opinion or in the opinion of Underwriters' Counsel, is
material, or omits to state a fact that, in the Representative's opinion or
in the opinion of Underwriters' Counsel, is material and is required to be
stated therein or is necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) On the Closing Date and the Option Closing Date, if any, the
Representative shall have received from Underwriters' Counsel the favorable
opinion to the effect that:
(i) the Preferred Securities conform in all material respects to
the description thereof contained in the Prospectus;
(ii) the Registration Statement is effective under the Act, and
if applicable, the filing of all pricing and other
information has been timely made in the appropriate form
under Rule 430A of the Rules and Regulations, and, to such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
18
19
issued, and no proceedings for that purpose have been
instituted or threatened by the Commission. Such counsel
shall state that such counsel has participated in
conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the
independent certified public accountants for the Company
and the Representative, at which conferences the contents
of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility
for, nor has such counsel independently verified, the
accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus
(except as to matters referred to in subparagraph (i) above
of this Section 6(c)), no facts have come to the attention
of such counsel (relying as to materiality to a large
extent upon the opinions of officers and other
representatives of the Company) that lead them to believe
that either the Registration Statement or any amendment
thereto, at the time such Registration Statement or
amendment became effective or any Preliminary Prospectus
(other than information omitted pursuant to Rule 430A) or
the Prospectus or any amendment or supplement thereto as of
the date of such opinion contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading (it being
understood that such counsel need express no view with
respect to the financial statements and schedules and other
financial and statistical data included in any Preliminary
Prospectus, the Registration Statement (including any
exhibit thereto) or the Prospectus or any amendment or
supplement thereto); and
(iii) each of the Preliminary Prospectuses, the Registration
Statement and the Prospectus and any amendments or
supplements thereto (other than the financial statements
and schedules, related notes and other financial and
statistical data included therein, as to which no opinion
need be rendered) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations.
The opinion of Underwriters' Counsel to be dated the Option Closing Date,
if any, may confirm as of the Option Closing Date the statements made by
such counsel in their opinion delivered on the Closing Date.
(d) (1) On the Closing Date and the Option Closing Date, if any, the
Underwriters shall have received the favorable opinion of Xxxxx, Xxxx &
Eliot LLP, counsel to the Offerors, dated the Closing Date and the Option
Closing Date, if any, addressed to the Underwriters and in form and
substance reasonably satisfactory to Underwriters' Counsel,
19
20
to the effect that:
(i) (A) the Company and each of the Subsidiaries are duly
organized, validly existing and in good standing under the
laws of their respective jurisdictions of organization, (B)
the Company is duly registered as a bank holding company
under the BHC Act, and (C) the Company is duly qualified as
a foreign corporation and in good standing in listed
jurisdictions; all of the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized
and validly issued and are fully-paid and non-assessable and
are owned of record by the Company; the outstanding shares
of capital stock of the Subsidiaries are owned by the
Company free and clear of all liens, encumbrances and
security interests and, to such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligations into, or exchange any securities for, any shares
of capital stock of or ownership interests in any of the
Subsidiaries are outstanding;
(ii) the Company and each of the Subsidiaries have the corporate
power to own, lease and operate their respective properties
and to conduct their respective businesses as described in
the Prospectus;
(iii) The capital stock, Debentures and Guarantee of the Company
and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all
material respects. The capital stock of the Company
authorized and issued as of December 31, 1997 is as set
forth under the caption "Capitalization" in the Prospectus,
has been duly authorized and validly issued, and is fully
paid and nonassessable. To such counsel's knowledge, there
are no outstanding rights, options or warrants to purchase,
no other outstanding securities convertible into or
exchangeable for, and no commitments, plans or arrangements
to issue, any shares of capital stock of the Company or
equity securities of the Trust, except as described in the
Prospectus. To such counsel's knowledge, the Firm Preferred
Securities and the Option Preferred Securities are not and
will not be subject to any preemptive rights under the
Massachusetts Business Corporation Law or similar statutory
rights. The issuance, sale and delivery of the Designated
Preferred Securities and Debentures in accordance with the
terms and conditions of this Agreement and the Indenture
have been duly authorized by all necessary actions of the
Offerors. All of the Designated Preferred Securities have
been duly and validly authorized and, when delivered in
accordance with this Agreement will be duly and validly
issued,
20
21
fully paid and nonassessable, and will conform in all
material respects to the description thereof in the
Registration Statement, the Prospectus and the Trust
Agreement; the certificates representing the Designated
Preferred Securities are in due and proper form; and the
Designated Preferred Securities have been approved for
quotation on NASDAQ-NMS subject to official notice of
issuance. There are no preemptive or other rights to
subscribe for or to purchase, and no restrictions upon the
voting or transfer of, any shares of capital stock or equity
securities of the Offerors or the Subsidiaries pursuant to
the corporate charter, by-laws or other governing documents
(including, without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or, to the best of such
counsel's knowledge, any agreement or other instrument to
which either Offeror or any of the Subsidiaries is a party
or by which either Offeror or any of the Subsidiaries may be
bound. To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right
that, if exercised, would require the Offerors to cause such
securities to be included in the Registration Statement or
any registration statement to be filed by the Company within
180 days of the date hereof or to require the Company to
file a registration statement under the Act during such 180
day period, or have waived such right.
(iv) the Registration Statement is effective under the Act, and,
if applicable, the filing of all pricing and other
information has been timely made in the appropriate form
under Rule 430A of the Rules and Regulations under the Act,
and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have
been instituted or, to such counsel's knowledge, threatened
by the Commission;
(v) the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the financial
statements and schedules, related notes and other financial
and statistical data included therein, as to which no
opinion need be rendered) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations under the Act; and to the best of such counsel's
knowledge, there are no contracts, agreements, leases or
other documents of a character required to be disclosed in
the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so
disclosed or filed;
(vi) (A) to such counsel's knowledge, there is not pending or
threatened against the Offerors or any of the Subsidiaries,
or involving any of
21
22
their respective properties or businesses, any action, suit,
proceeding, inquiry, investigation, litigation or
governmental proceeding, domestic or foreign, that (y) is
required to be disclosed in the Registration Statement and
is not so disclosed (and such proceedings as are summarized
in the Registration Statement are accurately summarized in
all material respects), or (z) questions the validity of the
capital stock or equity securities of the Company or the
Trust, this Agreement, or any action taken or to be taken by
the Offerors pursuant to or in connection with this
Agreement and (B) no statute or regulation or legal or, to
such counsel's knowledge, governmental proceeding required
to be described in the Prospectus is not described as
required;
(vii) the Offerors have all requisite corporate and trust power
and authority to enter into this Agreement and to consummate
the transactions provided for herein; and this Agreement has
been duly authorized, executed and delivered by the Offerors
and constitutes the legal, valid and binding obligation of
the Offerors enforceable in accordance with its terms. The
execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated herein and
in the Trust Agreement does not and will not result in any
breach or violation of any of the material terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge, claim,
pledge, security interest, or other encumbrance upon, any
property or assets (tangible or intangible) of the Offerors
or any of the Subsidiaries or the Designated Preferred
Securities pursuant to the terms of (A) the corporate
charter, operating agreement or by-laws, or other governing
instrument (including without limitation the Trust
Agreement) of the Offerors or any of the Subsidiaries, (B)
to such counsel's knowledge, the Guarantee, the Indenture,
the Expense Agreement, any voting trust agreement or any
stockholders agreement, or any indenture, mortgage, deed of
trust, note, loan or credit agreement or other agreement or
instrument known to such counsel to which either of the
Offerors or any of the Subsidiaries is a party or by which
any of them is or may be bound or to which any of their
respective properties or assets (tangible or intangible) is
or may be subject, or (C) any statute, rule or regulation
or, to such counsel's knowledge, any judgment, decree or
order applicable to either of the Offerors or any of the
Subsidiaries of any arbitrator, court, regulatory body or
administrative agency or other governmental agency or body
having jurisdiction over either of the Offerors or any of
the Subsidiaries or any of their respective activities or
properties, the violation of which would have a Material
Adverse Effect;
22
23
(viii) each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture
Act, has been duly authorized, executed and delivered by the
Company, and is a valid and legally binding obligation of
the Company enforceable in accordance with its terms;
(ix) the Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to
the benefits of the Indenture and are legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms;
(x) the Expense Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its
terms;
(xi) no consent, approval, authorization or order of, and no
filing with, any federal or state court, regulatory body,
government agency or other body (other than such as have
been effected under the Act and the Exchange Act and such as
may be required under Blue Sky or state securities laws or
the rules of the NASD in connection with the purchase and
distribution of the Designated Preferred Securities by the
Underwriters, as to which no opinion need be rendered) is
required in connection with the issuance of the Designated
Preferred Securities pursuant to the Prospectus and the
Registration Statement, the performance of this Agreement
and the transactions contemplated hereby;
(xii) to such counsel's knowledge neither the Offerors nor any of
the Subsidiaries is in violation of any term or provision of
its corporate charter, operating agreement, or by-laws or
other governing instrument (including without limitation the
Trust Agreement);
(xiii) the statements in the Prospectus (or incorporated therein
by reference) under the captions "Holding Company
Regulation," "Description of the Preferred Securities,"
"Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Relationship Among the
Preferred Securities, the Subordinated Debentures and the
Guarantee," "Certain Federal Income Tax Consequences," and
"ERISA Considerations" have been reviewed by such counsel,
and insofar as they refer to statements of law, descriptions
of statutes, written contracts, or rules or regulations, are
correct in all material respects; and
(xiv) Except as set forth in the Prospectus, to the best of such
counsel's
23
24
knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be
described therein on the ability of the Subsidiaries (A) to
pay dividends or make any other distributions on their
capital stock or to pay indebtedness owed to the Offerors,
(B) to make any loans or advances to, or investments in, the
Offerors or (C) to transfer any of their property or assets
to the Offerors.
Such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Offerors
and representatives of the independent certified public accountants
for the Offerors, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were
discussed, and, although such counsel is not passing upon and does not
assume any responsibility for, nor has such counsel independently
verified, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, no facts have
come to the attention of such counsel that lead them to believe that
either the Registration Statement or any amendment thereto, at any
time such Registration Statement or amendment became effective or any
Preliminary Prospectus circulated by the Underwriters (other than
information omitted pursuant to Rule 430A as of the date of such
Preliminary Prospectus) or the Prospectus or any amendment or
supplement thereto as of the date of such opinion contained or
contains any untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made (it being understood that
such counsel need express no view with respect to the financial
statements and schedules, related notes, and other financial and
statistical data included or incorporated by reference in any
Preliminary Prospectus circulated by the Underwriters, the
Registration Statement (including any exhibit thereto) or the
Prospectus or any amendment or supplement thereto).
The foregoing opinion may be limited to the laws of The Commonwealth
of Massachusetts, the laws of the jurisdictions of incorporation of
the Subsidiaries and applicable United States federal law. In
rendering the foregoing opinions, counsel may rely, to the extent they
deem such reliance proper, on the opinions of other counsel as to
matters governed by the laws of jurisdictions other than the United
States and The Commonwealth of Massachusetts. In rendering such
opinions, such counsel may rely as to matters of fact, to the extent
they deem proper, on certificates and written statements of
responsible officers of the Offerors and the Subsidiaries and
certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and the
Subsidiaries, provided that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel if requested.
For purposes of any of the opinions to be rendered by such counsel
pursuant to this subsection (d) of Section 6, the term "to such
counsel's knowledge" shall mean, to
24
25
the extent that such opinion relates to a factual issue or to a mixed
question of law and fact, that after examination of documents in such
counsel's files relating to the Offering and considering the actual
knowledge of the individual attorneys in such counsel's firm who have
given substantive attention to matters on behalf of the Offerors, such
counsel finds no reason to believe that any of such opinions is
factually incorrect.
The opinion of counsel to the Offerors, to be dated the Option Closing
Date, if any, may confirm as of the Option Closing Date the statements
made by such counsel in their opinion delivered on the Closing Date.
(2) Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust
Act, 12 DEL. C. secs. 3801 ET SEQ. (the "Delaware Act"), with
the business trust power and authority to (a) own its property
and conduct its business as described in the Prospectus, (b)
execute and deliver, and perform its obligations under, this
Agreement and (c) issue and perform its obligations under the
Trust Preferred Securities.
(ii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Company and the trustees of the Trust in
accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Act, all necessary
trust action has been taken on the part of the Trust to duly
authorize the execution and delivery of this Agreement by the
Trust and the performance of its obligations hereunder.
(iv) The Designated Preferred Securities have been duly authorized for
issuance by the Trust Agreement and, when issued and delivered
in accordance with the terms of the Trust Agreement and this
Agreement and as described in the Prospectus, will be validly
issued and (subject to the terms of the Trust Agreement) fully
paid and non-assessable undivided beneficial interests in the
assets of the Trust. The holders of the Preferred Securities
will be entitled to the benefits of the Trust Agreement and will
be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the Delaware General Corporation Law. Such
opinion may note that the holders of the Preferred Securities
may be required to make payment or provide indemnity or security
as set forth in the Trust Agreement.
(v) Under the Trust Agreement and the Delaware Act, the issuance of
the Preferred Securities is not subject to preemptive rights.
25
26
(vi) The issuance and sale by the Trust of the Designated Preferred
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation
by the Trust of the transactions contemplated by this Agreement
do not violate (a) any of the provisions of the Certificate of
Trust or the Trust Agreement or (b) any applicable Delaware law
or administrative regulation.
Such opinion may state that is limited to the laws of the State of Delaware
and that the opinion expressed in paragraph (ii) above is subject to the effect
upon the Trust Agreement of (i) bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and
remedies, (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 and the effect of applicable law relating to fiduciary duties.
(e) On or prior to each of the Closing Date and the Option Closing
Date, if any, Underwriters' Counsel shall have been furnished such
customary documents, certificates and opinions as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in subsection (d) of this Section 6, or in order to evidence
the accuracy, completeness or satisfaction of any of the representations,
warranties or conditions of the Offerors herein contained.
(f) Prior to each of the Closing Date and the Option Closing Date, if
any, (i) from the respective dates as of which information is set forth in
the Registration Statement and Prospectus, there shall have been no
developments that, individually or in the aggregate, have had a Material
Adverse Effect; (ii) there shall have been no transaction, not in the
ordinary course of business, entered into by either of the Offerors or any
of the Subsidiaries, from the latest date as of which the financial
condition of the Offerors and the Subsidiaries is set forth in the
Registration Statement and Prospectus, that, individually or in the
aggregate, has had a Material Adverse Effect; (iii) neither the Offerors
nor any of the Subsidiaries shall be in default under any provision of any
instrument relating to any of their respective outstanding indebtedness;
(iv) no material amount of the assets of the Offerors or any of the
Subsidiaries shall have been pledged or mortgaged, except as set forth in
the Registration Statement and Prospectus (including the exhibits to the
Registration Statement); (v) no action, suit or proceeding, at law or in
equity, shall have been pending or, to the knowledge of the Offerors,
threatened against the Offerors or any of the Subsidiaries, or affecting
any of their respective properties or businesses before or by any court or
federal, state or foreign commission, board or other administrative agency
wherein an unfavorable decision, ruling or finding would have a Material
Adverse Effect; and (vi) no stop order shall have been issued under the Act
and no proceedings therefor shall have been initiated, or, to the
Offerors's knowledge, threatened or contemplated by the Commission.
(g) At each of the Closing Date and the Option Closing Date, if any,
the
26
27
Representative shall have received a certificate of the Offerors signed by
the principal executive officer and by the chief financial officer of the
Company and by the Administrative Trustees of the Trust, dated the Closing
Date or Option Closing Date, as the case may be, to the effect that each of
such persons has carefully examined the Registration Statement, the
Prospectus and this Agreement and that:
(i) the representations and warranties of the applicable Offeror
in this Agreement are true and correct, as if made on and as
of the Closing Date or the Option Closing Date, as the case
may be, and the applicable Offeror has complied with all
agreements and covenants and satisfied all conditions
contained in this Agreement on its part to be performed or
satisfied at or prior to such Closing Date or Option Closing
Date, as the case may be;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings
for that purpose have been instituted or are pending or, to
the knowledge of such officer, are threatened under the Act;
(iii) none of the Registration Statement, the Prospectus nor any
amendment or supplement thereto includes any untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading and neither the
Preliminary Prospectus nor any supplement thereto included
any untrue statement of a material fact or omitted to state
any 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
(iv) subsequent to the respective dates as of which information
is given in the Registration and the Prospectus, neither the
Offerors nor any of the Subsidiaries has incurred up to and
including the Closing Date or the Option Closing Date, as
the case may be, other than in the ordinary course of their
respective businesses, any material liabilities or
obligations, direct or contingent; the Offerors has not paid
or declared any dividends or other distributions on its
capital or equity securities; neither the Offerors nor any
of the Subsidiaries has entered into any transactions not in
the ordinary course of business; and there has not been any
material change in the capital stock or long-term debt or
any material increase in the short-term borrowings of the
Offerors or any of the Subsidiaries; neither the Offerors
nor any of the Subsidiaries has sustained any material loss
or damage to its property or assets, whether or not insured;
there is no litigation that is pending or, to the knowledge
of such officers, threatened against the Offerors
27
28
or any of the Subsidiaries that is required to be set forth
in an amended or supplemented Prospectus that has not been
set forth; and there has occurred no event required to be
set forth in an amended or supplemented Prospectus that has
not been set forth.
References to the Registration Statement and the Prospectus in this
subsection (g) are to such documents as amended and supplemented at the
date of such certificate.
(h) On the date of this Agreement, the Representative shall have
received a letter in form and substance satisfactory to the Representative
and the Underwriters' Counsel addressed to the Underwriters and dated the
date of this Agreement from KPMG and signed by such firm with respect to
such matters as shall have been specified to such firm by the Underwriters
prior to the date hereof. At the Closing Date and the Option Closing Date,
if any, the Underwriters shall have received from KPMG a letter, dated as
of the Closing Date or the Option Closing Date, as the case may be,
reaffirming the statements made in the letter furnished by KPMG to the
Underwriters concurrently with the execution of this Agreement, each such
reaffirming letter to be in form and substance satisfactory to the
Underwriters and the Underwriters' Counsel.
(i) On each of the Closing Date and the Option Closing Date, if any,
there shall have been duly tendered to the Representative for the several
Underwriters' accounts the appropriate number of Designated Preferred
Securities.
(j) No order suspending the sale of the Designated Preferred
Securities in any jurisdiction designated by the Representative pursuant to
subsection (c) of Section 4 hereof shall have been issued on either the
Closing Date or the Option Closing Date, if any, and no proceedings for
that purpose shall have been instituted or to the knowledge of the
Representative or the Offerors shall be contemplated.
(k) The Designated Preferred Securities delivered on the Closing Date
or the Option Closing Date shall have been duly listed, subject to notice
of official issuance, on the NASDAQ-NM.
(l) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(m) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(n) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and Underwriters' Counsel
all such other documents, certificates and opinions as they have reasonably
requested.
28
29
If any condition to the Underwriters' obligations hereunder to be fulfilled
prior to or at the Closing Date or the relevant Option Closing Date, as the case
may be, is not so fulfilled, the Underwriters may terminate this Agreement or,
if the Underwriters so elects, it may waive any such conditions that have not
been fulfilled or extend the time for their fulfillment.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to defend, indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any breach of any representation, warranty, agreement or
covenant of the Company or the Trust herein contained or any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; and agrees to
reimburse each Underwriter subject to subsection (d) for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Offerors shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, such Preliminary
Prospectus or the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity in all material respects with written
information furnished with respect to any Underwriters by such Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, provided that
such written information or omissions only pertain to disclosures in the
Registration Statement, any preliminary Prospectus or the Prospectus or any
amendment or supplement thereto directly relating to the transactions
effected by the Underwriters in connection with this offering, and provided
further that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) if such untrue
statement or omission or alleged untrue statement or omission made in any
Preliminary Prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus has not been furnished to the person asserting any
such loss, claim, damage or liability at or prior to the written
confirmation of the sale of such Preferred Securities to such person.
The indemnity agreement in this Section 7(a) shall extend upon the
same terms and conditions to, and shall inure to the benefit of each
person, if any, who controls any Underwriter within the meaning of the Act.
This indemnity agreement shall be in addition to any liabilities which the
Offerors may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold
29
30
harmless the Offerors to the same extent as the foregoing indemnity from
the Company to the Underwriters but only with respect to statements or
omissions, if any, made in the Registration Statement, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto made in
reliance upon, and in conformity in all material respects with, written
information furnished with respect to any Underwriter by such Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, provided that
such written information or omissions only pertain to disclosures in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto directly relating to the transactions
effected by the Underwriters in connection with this offering.
The indemnity agreement in this Section 7(b) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
officer and director of the Company and the Trust who has signed the
Registration Statement, and each person, if any, who controls the Company
or the Trust within the meaning of the Act. This indemnity agreement shall
be in addition to any liabilities which each Underwriter may otherwise
have. For purposes of this Agreement, the Offerors acknowledge that the
statements with respect to the public offering of the Designated Preferred
Securities set forth under the heading "UNDERWRITING" and the stabilization
legend in the Prospectus and the last paragraph on the outside front cover
page of the Prospectus have been furnished by the Underwriters expressly
for use therein and constitute the only information furnished in writing by
or on behalf of the Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 7 (except to the extent that the omissions of such
notice causes actual prejudice to the indemnifying party), or otherwise
than under this Section 7. In case any such action is brought against any
indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
parties and the indemnifying party and counsel for the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel reasonably
satisfactory to the indemnifying party or parties to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying
30
31
party will not be liable to such indemnified party under this Section 7 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in accordance with the proviso to the
next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel approved by the indemnifying party, representing all the
indemnified parties under Section 7(a), 7(b) or 7(c) hereof who are parties
to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party. In no event shall any indemnifying party be liable in respect of any
amounts paid in settlement of any action unless the indemnifying party
shall have approved the terms of such settlement; provided however that
such consent shall not be unreasonably withheld.
(d) In order to provide for just and equitable contribution in any
action in which a claim for indemnification is made pursuant to this
Section 7 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact
that this Section 7 provides for indemnification in such case, all the
parties hereto shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others)
in such proportion so that the Underwriters are responsible pro rata for
the portion represented by the percentage that the underwriting discount
bears to the public offering price, and the Offerors are responsible for
the remaining portion, provided, however, that (i) no Underwriter shall not
be required to contribute any amount in excess of the underwriting discount
applicable to the Preferred Securities purchased by such Underwriter and
(ii) no person guilty of a fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to a contribution from any
person who is not guilty of such fraudulent misrepresentation.
(e) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including without limitation
the provisions of this Section 7, and are fully informed regarding such
provisions. They further acknowledge that the provisions of this Section 7
fairly allocate the risks in light of the ability of the parties to
investigate the Offerors and their business in order to assure that
adequate disclosure is made in the Registration Statement and Prospectus as
required by the Act and the Exchange Act. The parties are advised that
federal or state public policy, as interpreted by the courts in certain
jurisdictions, may be contrary to certain of the provisions of this Section
7, and the parties hereto hereby expressly waive and relinquish any right
or ability to assert such public policy as a defense to a claim under this
Section 7 and further agree not to attempt to assert any such defense.
31
32
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or contained in certificates of officers of the Offerors submitted pursuant
thereto shall be deemed to be representations, warranties and agreements at the
Closing Date and the Option Closing Date, as the case may be, and such
representations, warranties and agreements, and the indemnity and contribution
agreements contained in Section 7 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, the Offerors or any controlling person, and shall survive
termination of this Agreement or the issuance or sale and delivery of the
Designated Preferred Securities to the Underwriters.
9. EFFECTIVE DATE.
This Agreement shall become effective at 9:30 a.m., Eastern Time, on the
date hereof, or at such earlier time after the Registration Statement becomes
effective as the Representative, in its sole discretion, shall release the
Designated Preferred Securities for the sale to the public, provided, however
that the provisions of Sections 5, 7 and 9 of this Agreement shall at all times
be effective. For purposes of this Section 9, the Designated Preferred
Securities to be purchased hereunder shall be deemed to have been so released
upon the earlier of dispatch by the Representative of telegrams to securities
dealers releasing such Designated Preferred Securities for offering or the
release by the Representative for publication of the first newspaper
advertisement that is subsequently published relating to the Designated
Preferred Securities.
10. TERMINATION.
(a) Subject to subsection (d) of this Section 10, the Offerors may at
any time before this Agreement becomes effective in accordance with Section
9, terminate this Agreement.
(b) Subject to subsection (d) of this Section 10, the Representative
shall have the right to terminate this Agreement, (i) if any calamitous
domestic or international event or act or occurrence has materially
disrupted, or in the Representative's opinion will in the immediate future
materially disrupt, general securities markets in the United States; or
(ii) if trading on the New York Stock Exchange, the NASDAQ-NM or in the
over-the-counter market shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required on the over-the-counter market by the
NASD or by order of the Commission or any other government authority having
jurisdiction; or (iii) if the United States shall have become involved in a
war or major hostilities; or (iv) if a banking moratorium has been declared
by the State of New York, the Commonwealth of Massachusetts or any federal
authority; or (v) if a moratorium in foreign exchange trading has been
declared; or (vi) if the Company or the Trust shall have sustained a loss
material or substantial to the Company or the Trust by fire, flood,
accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act that, whether or not such loss shall have been insured, will,
in the Representative's reasonable opinion, make it
32
33
inadvisable to proceed with the delivery of the Designated Preferred
Securities; or (vii) if there shall have been a Material Adverse Effect.
(c) If any party hereto elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this
Section 10, such party shall notify, on the same day as such election is
made, the other parties hereto in accordance with the provisions of Section
13 hereof.
(d) Notwithstanding any contrary provision contained in this
Agreement, any election hereunder or any termination of this Agreement
(including, without limitation, pursuant to Sections 11 and 12 hereof), and
whether or not this Agreement is otherwise carried out, the provisions of
Sections 5, 7 and 9 shall not be in any way affected by such election or
termination or failure to carry out the terms of this Agreement or any part
thereof.
11. SUBSTITUTION OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 6, Section 10 or Section 12 hereof) to purchase the Designated Preferred
Securities that it or they are obligated to purchase on such date under this
Agreement (the "Defaulted Securities"), the Representative shall use its best
efforts within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24 hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
total number of Firm Preferred Securities to be purchased on such date, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total
number of Firm Preferred Securities and arrangements satisfactory to the
Representative for the purchase of the Defaulted Securities are not made
within 36 hours, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriters. The Offerors may assist the
Representative in making such arrangements by procuring another party
satisfactory to the Representative to purchase the Defaulted Securities on
the terms set forth herein.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default by such Underwriter under
this Agreement.
In the event of any such default that does not result in a termination of
this Agreement, the Representative shall have the right to postpone the Closing
Date for a period not exceeding seven
33
34
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
12. DEFAULT BY THE TRUST.
If the Trust shall fail at the Closing Date or the Option Closing Date, as
applicable, to sell and deliver the number of Preferred Securities that it is
obligated to sell hereunder on such date, then this Agreement shall terminate
(or, if such default shall occur with respect to any Option Preferred Securities
to be purchased on the Option Closing Date, the Underwriters may, at the
Representative's option, by notice from the Representative to the Company,
terminate the Underwriters' several obligations to purchase Designated Preferred
Securities from the Company on such date) without any liability on the part of
any non-defaulting party other than pursuant to Section 5 and Section 7 hereof.
No action taken pursuant to this Section shall relieve the Trust from liability,
if any, in respect of such default.
13. NOTICES.
All notices and communications hereunder may be mailed or transmitted by
any standard form of telecommunication and, except as herein otherwise
specifically provided, shall be in writing and shall be deemed to have been duly
given when delivered to a notice party hereto at the address specified herein or
at the address subsequently communicated in writing to the notice parties.
Notices to the Underwriters shall be directed to the Representative c/o Xxxxxx
Xxxxxxx Incorporated, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxxx, Managing Director, with a copy to Xxxxxx X. Pisa, P.C.,
Xxxxxxx, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Notices to the Company or the Trust shall be directed to c/o Century Bancorp,
Inc., 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, with a copy to Xxxxx X.
Xxxxxx, Esq., Xxxxx, Xxxx & Xxxxx, LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. In each case a notice party may change its address for
notice hereunder by a written communication to the other notice parties.
14. PARTIES.
This Agreement shall inure solely to the benefit of and shall be binding
upon, the Underwriters, the Offerors and the controlling persons, directors and
officers referred to in Section 7 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provisions herein contained. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
15. CONSTRUCTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW OR CONFLICT
34
35
OF LAWS PRINCIPLES.
16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which taken together shall be
deemed to be one and the same instrument.
17. ENTIRE AGREEMENT.
This Agreement and the Schedules hereto contain the entire agreement
between the parties hereto in connection with the subject matter hereof and
supersede all prior agreements, written or oral, with respect to such subject
matter.
18. AMENDMENT.
This Agreement and the Schedules hereto may not be amended, modified or
altered without the written agreement of the Offerors and the Underwriters. If
the foregoing correctly sets forth the understanding between the Underwriters
and the Offerors, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
CENTURY BANCORP, INC.
By:_________________________________________
Name:
Title:
CENTURY BANCORP CAPITAL TRUST
By:_________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED AS OF THE
DATE FIRST ABOVE WRITTEN:
XXXXXX XXXXXXX INCORPORATED
By:_________________________________________
Name:
Title:
35
36
SCHEDULE A
NAME NUMBER OF FIRM PREFERRED SECURITIES
---- -----------------------------------
Xxxxxx Xxxxxxx Incorporated
------------------------
------------------------
Total 2,500,000
