CAPITAL CROSSING PREFERRED CORPORATION
___% Noncumulative Exchangeable Preferred Stock, Series C
(Liquidation Preference $10.00 Per Share)
Exchangeable Into Preferred Stock of
CAPITAL CROSSING BANK
UNDERWRITING AGREEMENT
, 2001
Xxxxxx, Xxxxx Xxxxx, Inc.
Advest, Inc.
As Representatives of the several Underwriters
named in Schedule A hereto
c/x Xxxxxx, Xxxxx Xxxxx, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Capital Crossing Preferred Corporation, a Massachusetts corporation
(the "Company"), and Capital Crossing Bank, a Massachusetts-chartered trust
company (the "Bank"), hereby confirm their agreement with you and each of the
other Underwriters named in SCHEDULE A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 9 hereof), for whom Xxxxxx, Xxxxx Xxxxx, Inc. ("FBW") and
Advest, Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of the Company's __% Noncumulative Exchangeable
Preferred Stock, Series C (the "Series C Preferred Stock") set forth in said
SCHEDULE A, and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of additional shares of such preferred stock to
cover over-allotments, if any. The 1,500,000 shares of Series C Preferred Stock
(the "Firm Shares") to be purchased by the Underwriters and all or any part of
the 225,000 shares of Series C Preferred Stock subject to the option described
in Section 2(b) hereof (the "Option Shares") are hereinafter called,
collectively, the "Shares." Each share of the Series C Preferred Stock is
exchangeable, on the terms to be set forth in the
Company's Restated Articles of Organization, into one-hundredth of one share of
the Bank's __% Noncumulative Preferred Stock, Series D (the "Bank Preferred
Stock").
The Company understands that the Underwriters propose to make a public
offering of the Shares as soon as the Representatives deem such offering
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (no. 333-57044) covering the
registration of the Shares under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters for use in connection with the
offering of the Shares is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
The Bank has prepared a preliminary offering circular relating to the
Bank Preferred Shares which has been annexed to, and incorporated by reference
in, the preliminary prospectus and filed with the Commission as part of the
Registration Statement. The Bank will promptly prepare an offering circular
(which includes the information (the "Pricing Information") excluded from the
preliminary offering circular) to be annexed to and incorporated by reference in
the Prospectus. Each offering circular used before the time the Registration
Statement is declared effective by the Commission and any offering circular that
omits the Pricing Information that is used after such effectiveness and prior to
the date hereof is herein called a "preliminary offering circular." The offering
circular, as amended at the time the Registration Statement becomes effective
(and including the Pricing Information), is hereinafter referred to as the
"Offering
Circular" except that if any amended or supplemented offering circular shall be
provided to the Underwriters by the Bank for use in connection with the offering
of the Bank Preferred Shares which differs from the Offering Circular at the
time the Registration Statement became effective, the term "Offering Circular"
shall refer to such newly amended or supplemented offering circular from and
after the time it is first provided to the Underwriters for such use.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Bank jointly and severally represent and
warrant to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof and as of each Date of Delivery ( if any)
referred to in Section 2(b) hereof, and agree with the Underwriter as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Based solely on
oral advice provided to the Company, each of the Registration Statement and any
Rule 462(b) Registration Statement has become effective under the 1933 Act; the
Company has received no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement and, to the
Company's and the Bank's knowledge, no proceedings for that purpose have been
instituted or are pending or have been threatened by the Commission; and any
request on the part of the Commission to the Company for additional information
has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Shares are purchased, at
the Date of Delivery), the Registration Statement, the Rule 462(b) Registration
Statement, if any, and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Time (and, if any
Option Shares are purchased, at the Date of Delivery), included or will include
an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434 and the
Prospectus shall not be "materially different," as such term is used in Rule
434, from the prospectus included in the Registration Statement at the time it
became effective. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Bank or the Company in writing by the Underwriters expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the 1933 Act, complied when so filed in all material respects
with the 1933 Act Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted or required by
Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. KPMG LLP, the accountants who
certified certain financial statements of the Company for the year ended
December 31, 2000 included in the Registration Statement, and Wolf & Company,
P.C., the accountants who certified certain financial statements of the Company
for each of the years ended December 31, 1999 and 1998 included in the
Registration Statement, each are independent public accountants within the
meaning of the 1933 Act and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS. The consolidated historical
financial statements, together with the related schedules and notes,
incorporated by reference in the Prospectus present fairly, in all material
respects, the consolidated financial position of the Company at the dates
indicated, and the statements of income, changes in stockholders' equity and
cash flows of the Company for the periods specified, said financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") in the United States applied on a consistent basis throughout the
periods involved, except as disclosed in the notes to such financial statements;
the supporting schedules, if any, included in the Prospectus present fairly, in
all material respects, the information required to be stated therein; and the
summary financial data included in the Prospectus present fairly, in all
material respects, the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements incorporated by
reference in the Prospectus.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, results of operations,
or business affairs of the Company or the Bank, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company, other than those in the ordinary
course of business, which are material with respect to the Company or the Bank,
and (C) there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock other than as set forth or
contemplated in the Prospectus.
(v) GOOD STANDING OF THE COMPANY. The Company has been duly
incorporated and is an existing corporation in good standing under the laws of
the Commonwealth of Massachusetts and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not have a Material
Adverse Effect on the Company.
(vi) NO SUBSIDIARIES. The Company does not own or control,
directly or indirectly, any corporation, association or other entity.
(vii) CAPITAL STOCK DULY AUTHORIZED AND VALIDLY ISSUED. All of
the issued and outstanding capital stock of the Bank has been duly authorized
and validly issued and is fully paid and nonassessable and none of the capital
stock of the Bank was issued in violation of the preemptive rights or similar
rights arising by operation of law, under the Restated Articles of Organization
or bylaws of the Bank or under any agreement to which the Bank is a party. All
of the issued and outstanding capital stock of the Company has been duly
authorized and validly issued, is fully paid and nonassessable and all of the
outstanding common stock of the Company is owned by the Bank, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right; and none of the outstanding shares
of capital stock of the Company were issued in violation of any preemptive or
similar rights arising by operation of law, or under the Restated Articles of
Organization of the Company or under any agreement to which the Company or the
Bank is a party. Upon filing of the Restated Articles of Organization with the
Massachusetts Secretary of State, the Shares will be duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued and fully paid and
nonassessable. The Shares will upon issuance conform in all material respects to
the statements relating thereto contained in the Prospectus; the relative
rights, preferences, interests and powers of the Shares are as set forth in the
Company's Restated Articles of Organization.
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company as of December 31, 2000 is as set forth in the
Prospectus under "Capitalization," and there have not been any subsequent
issuances of capital stock of the Company except for subsequent issuances, if
any, pursuant to any dividend reinvestment plan, reservations, agreements,
conversions, stock dividends or employee or director benefit plans.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company and the Bank.
(x) DESCRIPTION OF SERIES C PREFERRED STOCK. The Series C
Preferred Stock of the Company conforms in all material respects to all
statements relating thereto contained or incorporated by reference in the
Prospectus.
(xi) COMPLIANCE WITH ARTICLES OF ORGANIZATION AND BYLAWS. The
Company is not in violation of its Restated Articles of Organization or bylaws
or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company is a party or by
which it may be bound, or to which any of the property or assets of the Company
is subject (collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the issuance
and sale of the Shares and the use of the proceeds from the sale of the Shares
as described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the Restated Articles of Organization or bylaws of the Company or
any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its assets, properties or
operations.
(xii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or the Bank, threatened, against or affecting the
Company or the Bank, which is not disclosed in the Registration Statement which,
if adversely decided, would result in a Material Adverse Effect, or if adversely
decided, would reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company or the Bank of
its obligations hereunder.
(xiii) AGREEMENTS BETWEEN THE COMPANY AND THE BANK. Each of
the Master Purchase Agreement, the Master Service Agreement and the Advisory
Agreement, in each case between the Company and the Bank, has been duly
authorized, executed and delivered by the Company and the Bank and constitutes a
valid and legally binding obligation of the Company and the Bank and is
enforceable in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or similar laws in effect which affect the enforcement of
creditors rights generally and (ii) general principles of equity, whether
considered in a proceeding at law or in equity.
(xiv) NO OTHER AGREEMENTS. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been so described
and filed as required.
(xv) NO FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
or the Bank of their respective obligations hereunder, in connection with the
offering, issuance or sale of the Shares hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been already
obtained or as may be required (A) from the Commissioner of Banks of the
Commonwealth of Massachusetts, (B) under the 1933 Act or the 1933 Act
Regulations, the Securities Exchange Act of 1934, as amended (the "1934 Act"),
or state securities laws and (C) the clearance of the offering with the National
Association of Securities Dealers, Inc. ("NASD").
(xvi) POSSESSION OF LICENSES AND PERMITS. The Company and the
Bank possess such governmental or regulatory permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses")
necessary to conduct the businesses now operated by them except where the
failure to possess would not be reasonably expected to have a Material Adverse
Effect; the Company and the Bank are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply would
not be reasonably expected to, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not be
reasonably expected to have a Material Adverse Effect; and neither the Company
nor the Bank has received any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xvii) COMPANY NOT AN INVESTMENT COMPANY. The Company is not,
and upon the issuance and sale of the Shares as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
not be, an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
(xviii) ABSENCE OF REGISTRATION RIGHTS. There are no persons
with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
(xix) REIT QUALIFICATION. The Company is organized and carries
on its business so as to enable it to qualify as a "real estate investment
trust" (a "REIT") under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and no transaction or other event has occurred
which would cause the Company not to enable it to qualify as a REIT for its
current taxable year or for future taxable years.
(xx) NASDAQ APPLICATION. An application to list the Shares on
the Nasdaq National Market has been filed and notification has been received
that such listing has been approved, subject to notice of issuance and sale of
the Shares.
(xxi) TITLE TO PROPERTY. Each of the Bank and the Company has
good and valid title to all of their respective real and personal properties, in
each case free and clear of all liens, encumbrances and defects, except as
stated in the Prospectus, or such as do not materially affect the value of such
properties in the aggregate to the Bank, or to the Company; and all of the
leases and subleases material to the business of the Bank, and to the Company,
and under which either of the Company or the Bank holds properties described in
the Prospectus, are in full force and effect and neither the Company nor the
Bank has any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company the Bank under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such entity
to the continued possession of the leased or subleased premises under any such
lease or sublease, which individually or in the aggregate might result in a
Material Adverse Effect.
(xxii) REGULATION M. The Company has not taken and will not
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Shares.
(xxiii) INTELLECTUAL PROPERTY. Each of the Company and the
Bank own or possess, or can acquire on reasonable terms, adequate patents,
licenses, trademarks, service marks, or trade names (collectively, "Intellectual
Property") presently employed by them in connection with the business now
operated by them or reasonably necessary in order to conduct such business, and
neither the Company nor the Bank has received any notice or is otherwise aware
of any infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the interest of, the
Company or the Bank therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, in the reasonable judgment of the Company and the
Bank, is likely to result in a Material Adverse Effect.
(b) The Bank represents and warrants to each Underwriter as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Offering
Circular, at the respective times the Registration Statement, the Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof and at all times subsequent thereto up to the
Closing Time (and, if any Option Shares are purchased, at the Date of Delivery),
did not and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this paragraph (b) (i) shall
not apply to statements in or omissions from the Offering Circular made in
reliance upon and in conformity with information furnished to the Bank in
writing by any Underwriter through the Representatives expressly for use
therein.
(ii) COMPLIANCE WITH FDIC REQUIREMENTS. Attachment A to the
Offering Circular, at the time it was filed with the Federal Deposit Insurance
Corporation ("FDIC") complied in all
material respects with the requirements of the FDIC and, when read together with
the other information in the Offering Circular, at the time the Registration
Statement, the Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective, at the date of the Offering Circular and at
the Closing Time (and if any Option Securities are purchased, at the Date of
Delivery), did not and will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein in the light of the circumstances under which they were made not
misleading.
(iii) INDEPENDENT ACCOUNTANTS. KPMG LLP, the accountants who
certified certain financial statements of the Bank for the year ended December
31, 2000 included in the Offering Circular and Wolf & Company, P.C., the
accountants who certified certain financial statements of the Bank for each of
the years ended December 31, 1999, and 1998 included in the Offering Circular,
each are independent public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(iv) GOOD STANDING OF CAPITAL CROSSING. The Bank does not own
or control, directly or indirectly, any corporation, association or other
entity, except for CHB Realty Corp. ("CHB"), Dolphin Capital Corp. ("Dolphin"),
and the Company (each, a "Subsidiary"; the Bank and the Subsidiaries taken as a
whole being hereinafter referred to as "Capital Crossing"). The Bank has been
duly organized and is validly existing in good standing as a
Massachusetts-chartered trust company, with full corporate power and authority
to own and lease its properties and conduct its business as described in the
Prospectus and the Offering Circular; each of CHB and Dolphin is a corporation
duly organized, validly existing and in good standing as a Massachusetts
corporation with full corporate power and authority to own and lease its
properties and conduct its business as described in the Offering Circular; all
issued and outstanding shares of each of CHB and Dolphin have been duly
authorized and are validly issued and non-assessable and are owned, directly or
indirectly, by the Bank free and clear of all claims, liens, charges and
encumbrances; the Bank and each of CHB and Dolphin are in possession of and
operating in material compliance with all authorizations, licenses, permits,
consents, certificates and orders material to the conduct of their respective
businesses as described in the Prospectus and the Offering Circular, all of
which are valid and in full force and effect; the deposit accounts of the Bank
are insured by the FDIC to the fullest extent provided by law, and no
proceedings for the termination or revocation of such insurance are pending or,
to the knowledge of the Bank, threatened by the FDIC or any other entity; each
of the Bank, CHB and Dolphin is duly qualified to do business and in good
standing in each jurisdiction in which the ownership or leasing of properties or
the conduct of its business requires such qualification, except for
jurisdictions in which the failure to so qualify would not have a Material
Adverse Effect on Capital Crossing; and to the Bank's knowledge no proceeding
has been instituted in any such jurisdiction, revoking, limiting or curtailing,
or seeking to revoke, limit or curtail, such power and authority or
qualification.
(v) CAPITALIZATION. The Bank had at December 31, 2000
authorized and outstanding capital stock as set forth in the Consolidated
Balance Sheets included in Attachment
A to the Offering Circular; such shares of capital stock have been duly
authorized and validly issued, are fully paid and non-assessable, have been
issued in compliance with all federal and state securities laws, were not issued
in violation of or subject to any preemptive rights or other rights to subscribe
for or purchase securities, and conform in all material respects to the
description thereof contained in the Offering Circular. Except as disclosed in
or contemplated by the Offering Circular and the consolidated financial
statements of Capital Crossing, and the related notes thereto, included in the
Offering Circular, the Bank has no outstanding options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, shares of its capital stock or any such options, rights,
convertible securities or obligations.
(vi) AUTHORIZATION OF THE BANK PREFERRED STOCK. Upon filing of
a Certificate of Vote of Directors establishing a class or series of Stock
relating to the Bank Preferred Stock (the "Certificate of Vote") with the
Massachusetts Secretary of State, the shares of Bank Preferred Stock have been
duly authorized (A) by all necessary action of the Bank and (B) by the
Commissioner of Banks of the Commonwealth of Massachusetts (the "Commissioner"),
and, if and when issued and delivered pursuant to the terms and conditions set
forth in the Bank's Amended and Restated Articles of Organization, as amended to
the date hereof and as to be amended by the Certificate of Vote relating to the
Bank Preferred Stock (the "Bank Charter"), will be validly issued, fully paid
and non-assessable. The Bank Preferred Shares will conform in all material
respects to the description thereof contained in the Offering Circular. No
preemptive rights or other similar rights exist with respect to the issuance of
the Bank Preferred Shares.
(vii) AUTHORIZATION OF AGREEMENT. The Bank has full legal
right, power and authority to enter into this Agreement and perform the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Bank and constitutes a valid and binding
obligation of the Bank in accordance with its terms except as such validity and
binding nature may be limited by (i) applicable bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or similar laws in effect
which affect the enforcement of creditors rights generally, (ii) general
principles of equity, whether considered in a proceeding at law or in equity and
(iii) state or federal securities laws or policies relating to the
non-enforceability of the indemnification or contribution provisions contained
herein. The making and performance of this Agreement by the Bank and the
consummation of the transactions herein contemplated will not violate any
provisions of the Amended and Restated Articles of Organization or bylaws, or
other organizational documents of the Bank or any Subsidiary, and will not
conflict with, result in the breach or violation of, or constitute, either by
itself or upon notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which either the Bank or any Subsidiary is a party or by
which any of their respective properties may be bound or affected, any statute
or any authorization, judgment, decree, order, rule or regulation of any court
or any regulatory body, administrative agency or other governmental body
applicable to them or any of their respective properties. No consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body is required for the execution
and delivery of this Agreement or the consummation by the Bank of the
transaction contemplated by this Agreement, except for (A) the approval of the
Commissioner of Banks referred to in subsection 2(b)(vi), (B) compliance with
the state securities laws applicable to the public offering of the Shares by the
Underwriters, and (C) the clearance of such offering with the NASD, and (D) the
filing of the Certificate of Vote of Directors Establishing a Class or Series of
Stock relating to the Bank Preferred Stock.
(viii) FINANCIAL STATEMENTS. The consolidated financial
statements of Capital Crossing and the related notes thereto, included in the
Prospectus and the Offering Circular, present fairly in all material respects
the financial condition of the Bank and the Subsidiaries on a consolidated basis
as of the respective dates of such financial statements, and the results of
operations and cash flows of the Bank and the Subsidiaries on a consolidated
basis for the respective periods covered thereby. Such statements and related
notes have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis as certified by the independent
accountants named in subsection 1(b)(iii). No other financial statements are
required to be included in the Prospectus or the Offering Circular. The selected
financial data set forth in the Offering Circular under the caption "Selected
Consolidated Financial Data," present fairly in all material respects the
information set forth therein in accordance with generally accepted accounting
principles.
(ix) NO MATERIAL ADVERSE EFFECT. Except as disclosed in the
Offering Circular, and except as to violations or defaults which would not,
individually or in the aggregate, have a Material Adverse Effect on Capital
Crossing: (A) Neither the Bank nor any Subsidiary is in violation or default of
any provision of its charter, certificate of incorporation or bylaws, or other
organizational documents, or in breach of or default with respect to any
provision of any trust, lease, franchise, license, indenture, permit or other
instrument to which it is a party or by which it or any of its properties are
bound; and (B) there does not exist any state of facts which constitutes an
event of default on the part of the Bank, CHB or Dolphin as defined in such
documents or which, with notice or lapse of time or both, would constitute such
an event of default and which would have a Material Adverse Effect on Capital
Crossing.
(x) ENFORCEABILITY OF CONTRACTS. The contracts described in
the Offering Circular are in full force and effect on the date hereof and
neither the Bank, nor to the best of the Bank's knowledge, any other party is in
breach of or default under any of such contracts, except for any such failure to
be in full force and effect or such breaches or defaults that would not have a
Material Adverse Effect on Capital Crossing.
(xi) ABSENCE OF PROCEEDINGS. Except as disclosed in the
Offering Circular, there are no legal or governmental actions, suits or
proceedings pending or, to the best of the Bank's knowledge, threatened to which
the Bank, CHB or Dolphin is or may be a party or of which property owned or
leased by the Bank, CHB or Dolphin is or may be the subject, or related to
environmental or discrimination matters, which actions, suits or proceedings are
reasonably likely to, individually or in the aggregate, prevent or adversely
affect the transactions
contemplated by this Agreement or result in a Material Adverse Effect on Capital
Crossing; and no labor disturbance by the employees of the Bank exists or is
imminent which is reasonably likely to have a Material Adverse Effect on Capital
Crossing. Except as disclosed in the Offering Circular, neither the Bank or any
Subsidiary is a party or subject to the provisions of any material injunction,
judgment, decree or order of any court, regulatory body, administrative agency
or other governmental body.
(xii) GOOD AND MARKETABLE TITLE. The Bank or a Subsidiary has
good and marketable title to all the properties and assets reflected as owned in
the consolidated financial statements of Capital Crossing, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except (A) those, if any,
reflected in such financial statements or (B) those which are not material in
amount and do not adversely affect the use made and proposed to be made of any
property by the Bank or the Subsidiary that is material to the business of
Capital Crossing. The Bank holds its leased properties under valid and binding
leases, with such exceptions as are not materially significant in relation to
the business of the Bank. Except as disclosed in the Offering Circular, the Bank
owns or leases all such properties as are necessary to its operations as now
conducted or as proposed to be conducted.
(xiii) ABSENCE OF UNDISCLOSED LIABILITIES. Since the
respective dates as of which information is given in the Offering Circular, and
except as described in or specifically contemplated by the Offering Circular:
(A) the Bank and the Subsidiaries have not incurred any material liabilities or
obligations, indirect, direct or contingent, or entered into any material verbal
or written agreement or other material transaction which is not in the ordinary
course of business or which would reasonably be expected to have a material
adverse effect on the results of operations of Capital Crossing; (B) the Bank
and the Subsidiaries have not sustained any material loss or interference with
their respective businesses or properties from fire, flood, windstorm, accident
or other calamity, whether or not covered by insurance; (C) the Bank has not
paid or declared any dividends or other distributions with respect to its
capital stock and the Bank and the Subsidiaries are not in default in the
payment of principal or interest on any outstanding debt obligations that are
material to the Bank; (D) there has not been any issuance, repurchase or
redemption of the capital stock or change in indebtedness material to the Bank
(other than in the ordinary course of business); and (E) there has not been any
change which would be reasonably likely to have a Material Adverse Effect on
Capital Crossing.
(xiv) CONDUCT OF BUSINESS. Except as may be disclosed in the
Offering Circular, the Bank and the Subsidiaries have conducted and are
conducting their respective businesses in substantial compliance with all
material laws, rules and regulations applicable to them in the respective
jurisdictions in which they are conducting business, including, without
limitation, all applicable local, state and federal environmental laws and
regulations, except where failure to be so in compliance would not have a
Material Adverse Effect on Capital Crossing.
(xv) TAXES. The Bank and the Subsidiaries have filed all
required federal, state and foreign income and franchise tax returns and have
paid all taxes shown as due thereon; and
the Bank has no knowledge of any tax deficiency which has been or is reasonably
likely to be asserted or threatened against the Bank or the Subsidiaries which
is reasonably likely to have a Material Adverse Effect on Capital Crossing.
(xvi) NOT AN INVESTMENT COMPANY. The Bank is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(xvii) ADEQUATE INSURANCE. Each of the Bank and each
Subsidiary maintains insurance of the types and in the amounts generally deemed
adequate for its business, including, but not limited to, insurance covering
real and personal property owned or leased by the Bank or the Subsidiaries
against theft, damage, destruction, acts of vandalism and all other risks
customarily insurance against, all of which insurance is in full force and
effect, except for such failures to be in full force and effect that would not
have a Material Adverse Effect on Capital Crossing.
(xviii) RELATED PARTY TRANSACTIONS. All material transactions
between the Bank and its Subsidiaries, on the one hand, and the officers,
directors and any affiliates of such persons or companies, on the other hand,
required to be disclosed in the Prospectus and the Offering Circular have been
accurately disclosed in all material respects.
(xix) EXEMPTION OF BANK PREFERRED SHARES. The Bank Preferred
Shares are exempt under Section 3(a)(2) of the 1933 Act from the securities
registration requirements of the 1933 Act.
(c) Any certificate signed by any officer of the Company or the Bank or
any of its subsidiaries delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Bank, as applicable, to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) FIRM SHARES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
a price per share of $10.00, the number of Firm Shares set forth in SCHEDULE A
opposite the name of such Underwriter, plus any additional number of Firm Shares
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 9 hereof. As compensation to the Underwriters for their
commitments hereunder, the Company hereby agrees to pay at the Closing Time and
at any Date of Delivery to the Underwriter a commission of $0.40 per Share
purchased by the Underwriters by wire transfer of immediately available funds.
(b) OPTION SHARES. In addition, on the basis of the representations and
warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Representatives, severally and not
jointly, to purchase up to an additional 225,000 shares of the Series C
Preferred Stock at the price per share set forth in paragraph (a) above. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Shares upon notice by FBW to the Company setting forth
the number of Option Shares as to which the Underwriters are then exercising the
option and the time and date of payment and delivery for such Option Shares. Any
such time and date of delivery (a "Date of Delivery") shall be determined by
FBW, but shall not be later than seven full business days after the exercise of
said option, nor in any event prior to the Closing Time, as hereinafter defined.
If the option is exercised as to all or any portion of the Option Shares, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Shares then being purchased which the
number of Firm Shares set forth in SCHEDULE A opposite the name of such
Underwriter bears to the total number of Firm Shares, subject in each case to
such adjustments as the Representatives in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) PAYMENT. The Shares to be purchased by each Underwriter hereunder
will be represented by one or more definitive certificates registered in the
name of __________ which will be deposited by or on behalf of the Company with
The Depository Trust Company ("DTC") or its designated custodian. The Company
will deliver the Shares to FBW for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer to the account specified by the Company in Federal (same day)
funds, by causing DTC to credit the Shares to the account of FBW at DTC. The
Company will cause the certificates representing the Shares to be made available
to FBW for checking at least twenty-four hours prior to the Time of Delivery at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be, with respect to the Firm
Shares, 10:00 A.M., eastern time, on __________, 2001, or such other time and
date as FBW and the Company may agree upon in writing, and, with respect to the
Option Shares, 10:00 A.M., eastern time, on the date specified by FBW in the
written notice given by FBW of the Underwriters' election to purchase such
Option Shares, or such other time and date as FBW and the Company may agree upon
in writing. Such time and date for delivery of the Firm Shares is herein called
the "Closing Time," such time and date for delivery of the Option Shares, if not
the Closing Time, is herein called the "Time of Delivery," and each such time
and date for delivery is herein called a "Time of Delivery." The documents to be
delivered at the Closing Time and the Time of Delivery by or on behalf of the
parties hereto pursuant to Section 5 hereof, including the cross-receipt for the
Shares and any additional documents requested by the Underwriters, will be
delivered at the offices of Xxxxxxx Procter LLP in Boston, Massachusetts.
SECTION 3. COVENANTS OF THE COMPANY.
(a) The Company covenants with each Underwriter as follows:
(i) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company will comply with the requirements of Rule 430A or Rule 434
as applicable and will notify the Representatives in writing promptly after the
Company receives notice thereof, (A) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (B) of the receipt
of any comments from the Commission, (C) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(ii) FILING OF AMENDMENTS. The Company will give the
Representatives notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall reasonably object.
(iii) DELIVERY OF REGISTRATION STATEMENTS. The Company has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, such number of copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein) as they may reasonably
request. The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(iv) DELIVERY OF PROSPECTUSES. The Company has delivered to
each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, during the period when the Prospectus is required
to be delivered under the 1933 Act or the Securities Exchange Act of 1934, as
amended, (the "1934 Act"), such number of copies of the Prospectus (as amended
or
supplemented) as such Underwriter may reasonably request; provided, however,
that during the nine-month period after the time of the issuance of the
Prospectus the Company will bear the expense of delivering such number of copies
of the Prospectus (as amended or supplemented), but that after such nine-month
period, the requesting Underwriter will bear the expense (including, without
limitation, any fees and disbursements of the Company's accountants and legal
counsel) of delivering such number of copies of the Prospectus (as amended or
supplemented). The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(v) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company
will comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Shares, any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the Company, to amend
the Registration Statement or amend or supplement the Prospectus in order that
the Prospectus will not include any untrue statements of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time it is delivered to a purchaser,
not misleading or if it shall be necessary, in the reasonable opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may
reasonably request; provided, however, that during the nine-month period after
the time of the issuance of the Prospectus the Company will bear the expense of
delivering such number of copies of such amendment or supplement, but that after
such nine-month period, the requesting Underwriter will bear the expense
(including, without limitation, any fees and disbursements of the Company's
accountants and legal counsel) of delivering such number of copies of such
amendment or supplement.
(vi) BLUE SKY QUALIFICATIONS. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the Shares for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; PROVIDED, HOWEVER, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Shares have been so qualified, the Company will file
such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(vii) RULE 158. The Company will make generally available to
its securityholders as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the effective date of
the Registration Statement (as defined in Rule 158(c) of the 1933 Act
Regulations), an earnings statement (which need not be audited but shall be in
reasonable detail) complying with Section 11(a) of the 1933 Act and the 1933 Act
Regulations.
(viii) USE OF PROCEEDS. The Company will use the net proceeds
received by it from the sale of the Shares in the manner specified in the
Prospectus under "Use of Proceeds."
(ix) NASDAQ LISTING. The Company will use its best efforts to
cause the Shares to be quoted on the Nasdaq National Market.
(xi) REIT QUALIFICATION. Except to the extent that a Tax Event
(as defined in the Prospectus) shall have occurred, the Company will in a timely
manner, make the elections and take the procedural steps described in the
Prospectus under the heading "Federal Income Tax Considerations" to meet the
requirements to qualify, for its taxable year ending December 31, 2000, as a
REIT under the Code, as is in effect on the date hereof and use every reasonable
effort to do so.
(xii) DTC. The Company will cooperate with the Underwriters
and use their best efforts to permit the Shares to be eligible for clearance and
settlement through the facilities of DTC.
(xiii) REPORTING REQUIREMENTS. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to Section 13, 14 or 15 of the 1934 Act within the time periods required by the
1934 Act and the rules and regulations of the Commission under the 1934 Act.
(xiv) FURNISH REPORTS. For and during the period ending three
years after the effective date of the Registration Statement, the Company will
furnish to the Representatives copies of all reports and other communications
(financial or otherwise) furnished by the Company to its securityholders
generally and copies of any reports or financial statements furnished to or
filed by the Company with the Commission or any national securities exchange on
which any class of securities of the Company may be listed.
(b) COVENANTS OF THE BANK. The Bank covenants with each Underwriter as
follows:
If any event shall occur as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or counsel for the Bank, to
amend or supplement the Offering Circular in order to make the Offering Circular
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Bank will forthwith amend or supplement
the Offering Circular by preparing the Offering Circular so that, as so amended
or supplemented, the Offering Circular will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time the
Offering Circular is delivered to a purchaser, not misleading.
SECTION 4. PAYMENT OF EXPENSES.
Whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, the Company and the Bank, jointly and
severally, covenant and agree with the several Underwriters to pay or cause to
be paid all expenses incident to the performance of the obligations of the
Company and/or the Bank under this Agreement, including (i) the preparation,
printing and filing of the Registration Statement and the Offering Circular
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Blue Sky
Memorandum and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Shares and the Bank
Preferred Shares, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Shares to the Underwriters, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors, (v) the qualification of
the Shares under securities laws in accordance with the provisions of Section
3(a)(vi) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Memorandum and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, preliminary offering circular, and of the Prospectus and the
Offering Circular and any amendments or supplements thereto, (vii) the fees and
expenses of any transfer agent or registrar for the Shares or the Bank Preferred
Shares, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. (the "NASD") of the terms
of the sale of the Shares, (x) the fees and expenses incurred in connection with
having the Shares included for quotation on the Nasdaq National Market; and (xi)
any other fees, expenses and reimbursements expressly required to be paid by the
Bank pursuant to the letter agreement between the Bank and FBW dated February 1,
2001.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Bank contained in Section
1 hereof or in certificates of any officer of the Company or the Bank delivered
pursuant to the provisions hereof, to the performance by each of the Company and
the Bank of their respective covenants and other obligations hereunder, and to
the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time (and, if
any Option Shares are purchased, at the Date of Delivery) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued to the Company under the 1933 Act and, to the knowledge of the Company,
no proceedings therefor shall have been initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A.
(b) OPINION OF OUTSIDE COUNSEL FOR THE COMPANY. There shall have been
furnished to you at the Closing Time, in form and substance reasonably
satisfactory to you and counsel for the Underwriters, an opinion of Xxxxxxx
Procter LLP, counsel for the Company and the Bank, addressed to you as
Representatives of the Underwriters and dated such Closing Time in the form
attached as APPENDIX X.
Xxxxxxx Procter LLP shall also have furnished to you at the Closing
Time a letter addressed to you as Representatives of the Underwriters and dated
the Closing Time, stating that:
Such counsel has participated in the preparation of the Registration
Statement and Prospectus and has participated in discussions with the
Representatives, counsel for the Underwriters, and representatives of
the Company and the Bank and their accountants. On the basis of the
information such counsel has gained in the course of the performance of
the services referred to above, considered in the light of their
understanding of the applicable law and the experience such counsel has
gained through its practice under the 1933 Act and the 1934 Act, such
counsel confirms to you that, nothing that came to their attention in
the course of such review has caused such counsel to believe that the
Registration Statement (including the Offering Circular incorporated by
reference therein) or any further amendment thereto made by the Company
prior to the Closing Time contained 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 not misleading, or
that, as of its date, the Prospectus (including the Offering Circular
incorporated by reference therein) or any further amendment or
supplement thereto made by the Company or the Bank prior to the Closing
Time contained 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 in which
they were made, not misleading or that, as of the Closing Time, either
the Registration Statement or the Prospectus or any further amendment
or supplement thereto made by the Company or the Bank prior to the
Closing Time contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading; and
such counsel does not know of any amendment to the Registration
Statement required to be filed.
Such counsel may state that the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such, however, that such counsel does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the captions "Description of the Series C Preferred Shares," "Description
of Capital Stock," "Federal Income Tax Consequences," and "ERISA Considerations"
in the Prospectus, and those made under the caption "Description of the Bank
Preferred Shares" in the Offering Circular insofar as such statement constitutes
a summary of documents referred to therein or matters of law. Also, such counsel
need not express any belief as to the financial statements, other financial,
statistical or accounting data and related schedules contained in the
Registration Statement or the Prospectus.
(c) OPINION OF OUTSIDE COUNSEL FOR THE UNDERWRITERS. At the Closing
Time, the Representatives shall have received the opinion, dated as of Closing
Time, of Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Underwriters, with respect to
the validity of the Shares and such other legal matters as the Underwriters
shall reasonably request.
(d) CERTIFICATES. At the Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectus or the Offering Circular, any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, results of operations or business affairs of the Company
or of the Bank and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received certificates of the President or a Vice President of each of the
Company and the Bank and of the chief financial or chief accounting officer of
each of the Company and the Bank, dated as of the Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Sections 1(a) and 1(b) hereof are true and
correct with the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Company and the Bank have complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued to the Company and, to the
knowledge of the Company, no proceedings for that purpose have been instituted
or are pending or are contemplated by the Commission.
(e) ACCOUNTANTS COMFORT LETTER. The Representatives shall have received
from each of KPMG LLP and Wolf & Company, P.C. a letter dated the date of this
Agreement, in form and substance reasonably satisfactory to the Representatives,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(f) BRING DOWN COMFORT LETTER. At the Closing Time, the Representatives
shall have received from each of KPMG LLP and Wolf & Company, P.C. a letter,
dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Time.
(g) APPROVAL OF LISTING. At the Closing Time, the Shares shall have
been approved for quotation, subject to notice of issuance, on the Nasdaq
National Market.
(h) NO OBJECTION. The NASD shall have confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) FILING OF CERTIFICATE OF VOTE. At the Closing Time, the Certificate
of Vote of Directors Establishing a Class or Series of Stock shall have been
filed with the Commissioner of Banks of the Commonwealth of Massachusetts.
(j) CONDITIONS TO PURCHASE OPTION SHARES. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Shares, the representations and warranties of
each of the Company and the Bank contained herein and the statements in any
certificates furnished by each of the Company and the Bank hereunder shall be
true and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Representatives shall have received:
(i) CERTIFICATES. A certificate, dated such Date of Delivery,
of the President or a Vice President of each of the Company and the Bank and of
the chief financial or chief accounting officer of each of the Company and the
Bank confirming that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct in all material respects as of such
Date of Delivery.
(ii) OPINION OF OUTSIDE COUNSEL TO COMPANY. The opinion and
letter of Xxxxxxx Procter LLP, counsel for the Company, dated such Date of
Delivery, relating to the Option Shares to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion and letter required by Section
5(b) hereof.
(iii) OPINION OF OUTSIDE COUNSEL TO UNDERWRITERS. The opinion
of Xxxxxxx Xxxxxxxx & Wood, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Shares to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(c) hereof.
(iv) BRING DOWN COMFORT LETTER. A letter from each of KPMG LLP
and Wolf & Company, P.C. in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the Representatives pursuant to Section
5(e) hereof, except that the "specified date" in the letter furnished pursuant
to this paragraph shall be a date not more than five days prior to such Date of
Delivery.
(k) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Shares as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Bank in connection with the issuance and sale of
the Shares as herein contemplated shall be satisfactory in form and substance to
the Representatives and counsel for the Underwriters.
(l) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Shares on
a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Shares, may be terminated
by the Representatives by written notice to the Company at any time at or prior
to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7, and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company and the Bank,
jointly and severally, agree to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any losses,
claims, damages or liabilities to which such Underwriter or such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus or preliminary offering circular, the Prospectus or the Offering
Circular or any amendment or supplement thereto or the omission or alleged
omission to state in the Registration Statement, (or in the case of any
preliminary prospectus or preliminary offering circular, or the Prospectus or
the Offering Circular a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading) or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse, as incurred, each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with
any such loss, claim, damage, liability or action; provided, however, that
neither the Company nor the Bank will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, any preliminary
prospectus or
preliminary offering circular, the Prospectus or the Offering Circular or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company or the Bank by any Underwriter through FBW
specifically for use therein. This indemnity agreement will be in addition to
any liability that the Company and the Bank may otherwise have. Neither the
Company nor the Bank will, without the prior written consent of the
Representatives, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any Underwriter or any
person who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(b) INDEMNIFICATION OF COMPANY, BANK, DIRECTORS, OFFICERS AND
EMPLOYEES. Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and the Bank, each of the directors and officers of
the Company who signed the Registration Statement, and each person, if any,
who controls the Company or the Bank within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any losses, claims, damages
or liabilities to which the Company or the Bank or any such director or
officer of the Company, or controlling person of the Company or the Bank may
become subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, (or in the case of any
preliminary prospectus or preliminary offering circular or the Prospectus or
the Offering Circular a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading) or any amendment or supplement thereto, or (ii) the omission
or the alleged omission to state therein a material fact required to be
stated in the Registration Statement, any preliminary prospectus or
preliminary offering circular or the Prospectus or the Offering Circular or
any amendment or supplement thereto, or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company or the Bank by such Underwriter through FBW
specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company or the Bank or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or any action in respect
thereof. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Promptly after receipt by an
indemnified party under this Section 6 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 6, notify the indemnifying
party 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 otherwise than under this Section 6. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
or shall have been advised by its counsel that there may be one or more legal
defenses available to it and/or other indemnified parties that conflict with
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of investigation,
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 in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 6, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(d) CONTRIBUTION. In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 6 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other hand from the offering of the Shares or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other hand in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Bank on
the one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Shares, in each case as set forth on the cover of the Prospectus. The
relative fault of the parties shall be determined by reference to, among, other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Company, the Bank and the Underwriters agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total underwriting commission received by such Underwriter hereunder in
connection with the Shares underwritten by it and distributed to the public,
less the aggregate amount of any damages that such Underwriter has otherwise
been required to pay in respect of the same or any substantially similar claim,
and no person guilty of fraudulent misrepresentation (within the meaning of
Section 11 (f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint, and contributions among
Underwriters shall be governed by the provisions of the Agreement Among
Underwriters. For the purposes of this paragraph 6(d), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director and officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Bank within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, shall have the same rights to contribution as the Company and the Bank.
SECTION 7. REPRESENTATIVES, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Bank or any of
its subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Bank, and shall survive delivery of the Shares to the Underwriters.
SECTION 8. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus or the
Offering Circular, any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
results of operations or business affairs of the Company or Capital Crossing, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Shares or to enforce contracts for
the sale of the Shares, or (iii) if trading in any securities of the Company or
the Bank has been suspended or materially limited by the Commission, by an
exchange that lists any such securities or by the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or Massachusetts authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6 and 7 shall survive such termination and remain in full force and effect.
SECTION 9. DEFAULTED SHARES. If one or more of the Underwriters shall
fail at Closing Time or a Date of Delivery to purchase the Shares which it or
they are obligated to purchase under this Agreement (the "Defaulted Shares"),
the Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Shares in
such amounts as may be agreed upon and upon the terms herein set forth; if,
however, the Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Shares does not exceed 10% of the number
of Shares to be purchased on such date, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, 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 Shares exceeds 10% of the number of
Shares to be
purchased on such date, this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the Underwriters to
purchase and of the Company to sell the Option Shares to be purchased and sold
on such Date of Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Shares, as
the case may be, either the Representatives or the Company shall have the right
to postpone Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9.
SECTION 10. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxx, Xxxxx Xxxxx, Inc. at the address set
forth on the first page, attention of Xxxxxxx X. Xxxxx with a copy to Xxxxxxx X.
Xxxxxxxx, Xxxxxxx Xxxxxxxx & Xxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000; notices to the Company and the Bank shall be directed to
Xxxxxxx X. Xxxxxxx, Vice President and Corporate Counsel, Capital Crossing Bank,
000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 with a copy to Xxxxxxx X. Xxxxx, Xxxxxxx
Procter LLP, Xxxxxxxx Xxxxx, Xxxxxx XX 00000.
SECTION 11. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and the Bank and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Bank and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Bank and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchase of Shares from the
Underwriter shall be deemed to be a successor by reason merely of such purchase.
The Company hereby irrevocably submits to the exclusive jurisdiction of
the federal and Maryland State courts located in the City of Baltimore in
connection with any suit, action or proceeding related to this Agreement or any
of the matters contemplated hereby, irrevocably
waives any defense of lack of personal jurisdiction and irrevocably agrees that
all claims in respect of any suit, action or proceeding may be heard and
determined in any such court. The Company, on behalf of itself and the
Subsidiaries (including, without limitation, the Bank), irrevocably waives, to
the fullest extent it may effectively do so under applicable law, any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT
REGARD TO CONFLICTS OF LAWS AND PRINCIPLES.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to each of the Company and the Bank a
counterpart hereof, whereupon this instrument, along and all counterparts, will
become a binding agreement between the Underwriters and the Company and the Bank
in accordance with its terms.
Very truly yours,
CAPITAL CROSSING PREFERRED CORPORATION
By:
Title:
CAPITAL CROSSING BANK
By:
Title:
XXXXXX, XXXXX XXXXX, INC.
ADVEST, INC.
By: Xxxxxx, Xxxxx Xxxxx, Inc.
By:
Authorized Signatory
