S&W Draft
Dated 6/23/99
EXHIBIT 1.1
1,750,000 PREFERRED SECURITIES
NHTB CAPITAL TRUST I
____% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
UNDERWRITING AGREEMENT
Boston, Massachusetts ________ __, 1999
XXXXXX XXXXXXX XXXXXX GULL
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
New Hampshire Thrift Bancshares, Inc., a Delaware corporation (the
"Company") and its financing subsidiary, NHTB Capital Trust I, a Delaware
business trust (the "Trust", and hereinafter together with the Company, the
"Offerors"), confirm their agreement with Xxxxxx Xxxxxxx Xxxxxx Gull ("Xxxxxx
Xxxxxx") 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
Xxxxxx is acting as representative (in such capacity, Xxxxxx Xxxxxx 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 1,750,000 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 defined in Section 2(d) hereof), the terms
of which are more fully described in the prospectus (as hereinafter defined)
(the aforementioned 1,750,000 Preferred Securities to be sold to the
Underwriters being referred to herein as the "Firm Preferred Securities"). The
words "you" and "your" as used herein 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, as follows:
-2-
(a) A registration statement on Form S-2 (File No. - ) with
respect to the Firm Preferred Securities, the Guarantee (as defined in
Section 2(d) hereof) and $18,041,200 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 Firm 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 Firm 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
-3-
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 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 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 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 State of Delaware and is
duly registered as a savings and
-4-
loan holding company under the Savings and Loan Holding Company Act, as
amended (the "SLHC 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 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 depository institution
subsidiary is Lake Sunapee Bank FSB (the "Bank"). The deposit accounts of
the Bank are insured by the Savings Association 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 Firm 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
-5-
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 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 will be, treated as a 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 Firm 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
Firm Preferred Securities in accordance with such terms and conditions
has been validly and sufficiently taken. The Firm 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 Firm 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
-6-
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.
[(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.][Delete if no separate Expense Agreement will be used.]
(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.
-7-
(f) Xxxxxxxxx, XxXxxx & Company, P.C. ("SM&C"), 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 Firm Preferred Securities, (ii) the purchase by the Underwriters of
the Firm Preferred Securities, or (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
-8-
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 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 Firm 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 Firm
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 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
-9-
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 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.
-10-
-11-
(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 Firm 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 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 mark,
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.
-12-
(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 Firm 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 "[NHTBP]" subject to official notice of issuance.
(bb) 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.
(cc) 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.
(dd) 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 or assets to the Offerors.
(ee) (i) Each of the Company and the Bank has adopted a plan (in each case
a "Year 2000 Plan") requiring testing, information-gathering and other
procedures to conform to the deadlines and material requirements and
guidelines applicable to it as a provider of services using Information
Technology and imposed by any federal or state governmental agency or
authority or the Federal Financial Institution Examination Counsel (the
"FFIEC") to cause such Information Technology to be Year 2000 Compliant
(such deadlines, material requirements and guidelines, as they may be in
effect from time to time, being referred to in this Agreement as the "Year
2000 Regulatory Requirements").
(ii) Each of the Company and the Bank has taken appropriate actions and has
committed the resources reasonably necessary or otherwise appropriate to
comply with its Year 2000
-13-
Plan in a timely manner. Such actions (including the testing and
information-gathering procedures) have not produced any preliminary
findings or other results which would indicate that the Information
Technology will not be Year 2000 Compliant or that it will not be in
compliance with the Year 2000 Regulatory Requirements; and it has not
received any written notice or preliminary oral notice from any federal or
state governmental agency or authority or the FFIEC to one of its officers
or senior executive employees with respect to any adverse action against it
relating to Year 2000 Compliance.
(iii) For purposes of this Agreement, (A) "Information Technology" means
all computer software, computer hardware (whether general or specific
purpose) or other similar or related items of automated, computerized or
software systems that are used or relied on by the Company or the Bank, or
any of their respective Subsidiaries, in the conduct of their respective
businesses; and (B) "Year 2000 Compliant" means that the Information
Technology is designed to be used prior to, during and after the calendar
year 2000 A.D., and the Information Technology used during each such time
period will accurately receive, provide and process date/time data
(including calculating, comparing and sequencing) from, into and between
the 20th and 21st centuries, including the years 1999 and 2000 and leap-
year calculations, and will not malfunction, cease to function, or provide
invalid or incorrect results as a result of date/time data, to the extent
that any other information technology, used in combination with the
Information Technology, properly exchanges date/time data with it.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM PREFERRED SECURITIES; DESCRIPTION
OF FIRM 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"). The price
of the Firm Preferred Securities shall be $10 per Preferred Security.
(b) Payment of the purchase price and Firm Preferred Securities Commission
for, and delivery of certificates for, the Firm Preferred Securities shall
be made on the Closing Date
-14-
by wire transfer of immediately available funds, payable to the order of
the Trust, at the offices of Xxxxxx Xxxxxx at Xxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, or at such other place as shall be agreed upon by the
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. Certificates for the Firm Preferred Securities 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. The certificates for the Firm Preferred Securities
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.
(c) The Offerors propose that the Trust issue the Firm Preferred Securities
pursuant to an Amended and Restated Trust Agreement among The Wilmington
Trust Company, as Property Trustee, Wilmington Trust Company Delaware, 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 Firm
Preferred Securities, the Company proposes (i) to issue its Subordinated
Debentures (the "Debentures") pursuant to an Indenture, dated as of
_________ __, 1999, between the Company and The Wilmington Trust Company,
as debenture trustee (the "Indenture") and (ii) to guarantee certain
payments on the Firm Preferred Securities pursuant to a Guarantee Agreement
between the Company and The Wilmington Trust Company, as guarantee trustee
(the "Guarantee"), to the extent described therein.
3. PUBLIC OFFERING OF THE FIRM PREFERRED SECURITIES.
As soon after the Registration Statement becomes effective as the
Underwriters deem advisable, the Underwriters shall make a public offering of
the Firm 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.]
-15-
The Underwriters may reserve and sell such of the Firm 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.
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 Firm 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
Firm 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 Firm Preferred Securities as then in effect
would include an untrue statement of a material
-16-
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 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 Firm 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 Firm
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 Firm 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 Firm 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 Firm 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
-17-
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 security holders 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) 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 Firm 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 Firm
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
-18-
other beneficial interests in the assets of the Trust or any securities of
the Trust or the Company that are substantially similar to the Firm
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 the
Closing Date all expenses and fees (other than fees of Underwriters'
Counsel, except as provided in (iii), (v) and (vii) of this Section 5(a)
and Section 5(b) 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 Firm Preferred Securities, including any transfer or
other taxes payable thereon, (v) the qualification of the Firm 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 Firm
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 $75,000 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 $75,000 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
-19-
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; the accuracy on and as of the Closing Date of the
statements of officers of the Offerors made pursuant to the provisions hereof;
and the performance by the Offerors on and as of the Closing Date 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 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 Firm 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
-20-
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) On the Closing Date 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 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
-21-
(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.
(d) (1) On the Closing Date the Underwriters shall have received the
favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxx, counsel to the Offerors,
dated the Closing Date addressed to the Underwriters and in form and
substance reasonably satisfactory to Underwriters' Counsel, 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 savings and loan holding
company under the SLHC 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
________ __, 1999 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
-22-
Prospectus. To such counsel's knowledge, the Firm Preferred
Securities are not and will not be subject to any preemptive
rights under the Delaware General Corporation Law or similar
statutory rights. The issuance, sale and delivery of the Firm
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
Firm Preferred Securities have been duly and validly authorized
and, when delivered in accordance with this Agreement will be
duly and validly issued, 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 Firm Preferred
Securities are in due and proper form; and the Firm 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
-23-
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 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 Firm 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
-24-
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;
(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
Firm Preferred Securities by the Underwriters, as to which no
opinion need be rendered) is required in connection with the
issuance of the Firm 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 "Regulation," "Description of
Capital," "Description of Debentures," "Description of
Guarantee," "Relationship Among the Capital 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,
-25-
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 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 State of New York, the
laws of the jurisdictions of incorporation of the Company and 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 the State of New York and the Delaware General Corporation
Law. 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
-26-
counsel pursuant to this subsection (d) of Section 6, the term "to such
counsel's knowledge" shall mean, to 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.
(2) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date 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 Firm 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.
-27-
(vi) The issuance and sale by the Trust of the Firm 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 it 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 the Closing Date 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 the Closing Date, (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 the Closing Date the Representative shall have received a
certificate of the Offerors signed by the principal executive officer and
by the chief financial officer of the
-28-
Company and by the Administrative Trustees of the Trust, dated the Closing
Date, 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, 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 the Closing Date;
(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 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 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.
-29-
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 SM&C 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, the Underwriters shall have
received from SM&C a letter, dated as of the Closing Date reaffirming the
statements made in the letter furnished by SM&C to the Underwriters
concurrently with the execution of this Agreement, such reaffirming letter
to be in form and substance satisfactory to the Underwriters and the
Underwriters' Counsel.
(i) On the Closing Date there shall have been duly tendered to the
Representative for the several Underwriters' accounts the appropriate
number of Firm Preferred Securities.
(j) No order suspending the sale of the Firm Preferred Securities in any
jurisdiction designated by the Representative pursuant to subsection (c) of
Section 4 hereof shall have been issued on the Closing Date, 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 Firm Preferred Securities delivered on the 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 Firm
Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(n) Prior to the Closing Date, the Offerors shall have furnished to you
and Underwriters' Counsel all such other documents, certificates and
opinions as they have reasonably requested. If any condition to the
Underwriters' obligations hereunder to be fulfilled prior to or at the
Closing Date 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,
-30-
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 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
-31-
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 Firm 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 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)
-32-
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.
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
-33-
representations, warranties and agreements at the Closing Date, 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 Firm
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 Firm
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 Firm 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
Firm Preferred Securities for offering or the release by the Representative for
publication of the first newspaper advertisement that is subsequently published
relating to the Firm 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 State of New Hampshire 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 inadvisable to proceed
with the delivery of the Firm Preferred Securities; or (vii) if there shall
have been a Material Adverse Effect.
-34-
(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 Firm 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 Firm 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 days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements.
-35-
12. DEFAULT BY THE TRUST.
If the Trust shall fail at the Closing Date to sell and deliver the number
of Preferred Securities that it is obligated to sell hereunder on such date,
then this Agreement shall terminate 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/x Xxxxxx
Xxxxxxx Xxxxxx Gull, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxxx, Managing Director, with a copy to Xxxxxxx X. Xxxxxx, Esq.,
Xxxxxxxx & Worcester LLP, One Post Office Square, Boston, Massachusetts 02109.
Notices to the Company or the Trust shall be directed to c/o New Hampshire
Thrift Bancshares, Inc., 0 Xxxx Xxxxxx, X.X. Box 9, Newport, New Hampshire
03773, with a copy to Xxxxxxx X. Xxxxxxxx, Esq., Xxxxxxxx Xxxxxxxx & Xxxx, 0000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 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 OF LAWS PRINCIPLES.
16. COUNTERPARTS.
-36-
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,
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
By:_________________________________________
Name:
Title:
NHTB CAPITAL TRUST I
By:_________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED AS OF THE
DATE FIRST ABOVE WRITTEN:
XXXXXX XXXXXXX XXXXXX GULL
-37-
By:_________________________________________
Name:
Title:
-38-
SCHEDULE A
NAME NUMBER OF FIRM PREFERRED SECURITIES
---- --------------------------------------------
Xxxxxx Xxxxxxx Xxxxxx Gull 1,750,000
Total 1,750,000
