Exhibit 1.1
1,700,000 CAPITAL SECURITIES
WESTBANK CAPITAL TRUST I
____% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $10 PER CAPITAL SECURITY)
UNDERWRITING AGREEMENT
Boston, Massachusetts August __, 1999
XXXXXX XXXXXXX XXXXXX GULL
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Westbank Corporation, a Massachusetts corporation (the "Company") and its
financing subsidiary, Westbank 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 1,700,000 of
the Trust's ___% Capital Securities, with a liquidation amount of $10 per
capital security ("Capital 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 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:
(a) A registration statement on Form S-2 (File No. 333-______) with respect
to the Capital Securities, the Guarantee (as defined in Section 2(c)
hereof) and $17,000,000 aggregate principal amount of Debentures (as
defined in Section 2(c) 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
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registration statement, and such prospectus subject to completion, have
been declared effective by the Commission; and no further amendments to
such registration statement, and such amended prospectuses subject to
completion, have been filed by the Offerors with the Commission. Copies of
the registration statement and as amended, each 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. 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 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 Capital Securities as included in
such registration statement at the time it became 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 Capital Securities
that differs from the Prospectus on file with the Commission at the time
the registration statement became effective (whether or not such revised
prospectus is required to be filed with the Commission pursuant to Rule
424(b)(3) of the Rules and Regulations under the Act), the term
"Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriters for 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.
The Offerors understand that, pursuant to Section 2 hereof, the
Underwriters propose to make a public offering of the Capital Securities as
set forth in and pursuant to the Prospectus. The Offerors hereby confirm
that the Underwriters and such dealers who shall purchase any of the
Capital Securities from the Underwriters for distribution in connection
with such public offering have been authorized to distribute or cause to be
distributed each Preliminary Prospectus and are authorized to distribute
the Prospectus (as from time to time amended or supplemented if and to the
extent that the Offerors furnish any such amendments or supplements thereto
to the Underwriters).
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(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 Commonwealth of
Massachusetts and is duly registered as a bank holding company under the
Bank Holding Company Act, as amended (the "BHC Act"). Each of the
subsidiaries of the Company (collectively, the "Subsidiaries" and
individually, a "Subsidiary") has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of
organization. The Company 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
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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
subsidiaries are Park West Bank and Trust Company and Xxxxxxx Bank (the
"Banks"). The deposit accounts of the Park West Bank and Trust Company and
Xxxxxxx Bank are insured by the Bank Insurance Fund and the Savings
Association Insurance Fund, respectively, 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 Capital Securities, to enter into
and perform its obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has conducted and will conduct
no business other than the transactions contemplated by this Agreement and
described in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust Agreement and
the agreements and instruments contemplated by the Trust Agreement and
described in the Prospectus; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Prospectus; the
Trust is not a party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date 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.
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(ii) (A) The Trust has all requisite power and authority to issue,
sell and deliver the Capital 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
Capital Securities in accordance with such terms and conditions has
been validly and sufficiently taken. The Capital 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 Capital Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge, encumbrance,
restriction upon voting or transfer, preemptive rights, claim, equity
or other title defect.
(B) The Debentures have been duly and validly authorized, and,
when duly and validly executed, authenticated and issued as provided
in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of
the Company entitled to the benefits of the Indenture and will conform
in all material respects to the description thereof contained in the
Prospectus.
(C) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the guarantee trustee
for the benefit of the Trust, will constitute a valid and legally
binding obligation of the Company and will conform in all material
respects to the description thereof contained in the Prospectus.
(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
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Registration Statement, and the outstanding debt, the property, both
tangible and intangible, and the business of the Company and each of the
Subsidiaries conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus. The summary and
selected consolidated financial and statistical data included in the
Registration Statement and the Prospectus present fairly the information
shown therein or incorporated by reference and have been compiled on a
basis consistent with the unaudited and audited consolidated financial
statements included therein. The Company's internal accounting controls are
sufficient to cause the Company to comply with the Foreign Corrupt
Practices Act of 1977, as amended. Neither the Company nor any of the
Subsidiaries has any material contingent obligation which is not disclosed
in the Registration Statement.
(f) Deloitte & Touche LLP ("Deloitte"), 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 Capital Securities, (ii) the purchase by the Underwriters of the
Capital 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 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
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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 and the Guarantee has
been duly authorized by the Company, and, when executed and delivered by
the Company on the Closing Date, each of said agreements will constitute a
valid and legally binding obligation of the Company and will be enforceable
against the Company in accordance with its terms. Each of the Indenture,
the Trust Agreement and the Guarantee has been duly qualified under the
Trust Indenture Act and will conform to the description thereof contained
in the Prospectus. The execution and delivery of this Agreement by the
Offerors, their performance hereunder, their consummation of the
transactions contemplated herein and the conduct of their business and that
of each of the Subsidiaries as described in the Registration Statement, the
Prospectus and any amendments or supplements thereto does not and will not
conflict with in any material respect or result in any breach or violation
of any of the material terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge, claim,
encumbrance, pledge, security interest, defect or other restriction on
equity of any kind whatsoever upon, any property or assets (tangible or
intangible) of either Offeror or any of the Subsidiaries, pursuant to the
terms of (i) the corporate charter, operating agreement or by-laws of the
Company or any of the Subsidiaries or the Trust Agreement, the Guarantee or
the Indenture, (ii) any license, contract, indenture, mortgage, deed of
trust, voting trust agreement, stockholders agreement, note, loan or credit
agreement or any other agreement or instrument to which either Offeror or
any of the Subsidiaries is a party or by which any of them is or may be
bound or to which any of their respective properties or assets (tangible 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 Capital 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 Capital 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,
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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, other than in the
ordinary course of business, 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)
other than in the ordinary course of business, 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 is no unfair labor practice charge or complaint against
either Offeror or any of the Subsidiaries pending before the National Labor
Relations Board or any strike, picketing, boycott, dispute, slowdown or
stoppage pending or threatened against or involving either Offeror or any
of the Subsidiaries, and no such strike, picketing, boycott, dispute,
slowdown or stoppage has ever occurred. No representation question exists
respecting the employees of either Offeror or any of the Subsidiaries, and
no collective bargaining agreement or modification thereof is currently
being negotiated by either Offeror or any of the Subsidiaries. There are
no expired or existing collective bargaining agreements of either Offeror
or any of the Subsidiaries.
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(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.
(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.
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(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 Capital 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 xxxx,
trade name, copyright, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), technology or other intangible asset, with respect
to the use thereof or in connection with the conduct of its business or
otherwise.
(y) The Offerors and each of the Subsidiaries have good and marketable
title to, or valid and enforceable leasehold estates in, all items of real
and personal property stated in the Prospectus (including the financial
statements included or incorporated by reference therein) to be owned or
leased by them, free and clear of all liens, charges, claims, encumbrances,
pledges, security interests, defects or other restrictions on equity of any
kind whatsoever, other than (i) those referred to in the Prospectus
(including such financial statements), (ii) liens for taxes not yet due and
payable and (iii) mechanics, materialmen, warehouse and other statutory
liens arising in the ordinary course of business which, either individually
or in the aggregate, do not have a Material Adverse Effect.
(z) Except as described in the Prospectus under "Underwriting" and on the
cover page thereof, there are no claims, payments, issuances, arrangements
or understandings for services in the nature of a finder's or origination
fee with respect to the sale of the Capital 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 Capital Securities have been approved for listing on the Nasdaq
Stock Market, Inc.'s National Market System (the "NASDAQ-NM") under the
symbol "WBKCP" subject to official notice of issuance.
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(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 Banks have 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 Banks have taken appropriate actions and
have committed the resources reasonably necessary or otherwise appropriate
to comply with its Year 2000 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 Banks, 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-
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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 CAPITAL SECURITIES; DESCRIPTION OF
CAPITAL 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 Capital
Securities to the several Underwriters, and each Underwriter, severally and
not jointly, agrees to purchase that number of Capital Securities set forth
in Schedule A opposite its name plus any additional number of Capital
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 Capital Securities is herein called the "Closing Date."
Because the proceeds from the sale of the Capital 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
$0.35 per Capital Security purchased (the "Capital Securities Commission").
The price of the Capital Securities shall be $10 per Capital Security.
(b) Payment of the purchase price, net of the Capital Securities
Commission, for the Capital Securities shall be made on the Closing Date by
wire transfer of immediately available funds, payable to the order of the
Trust, and delivery of the Capital Securities shall be made on such date 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, such payment shall be made by wire transfer, upon delivery of a
global certificate(s) (in form and substance satisfactory to the
Representative) representing such securities to the Representative.
Delivery and payment for the Capital 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. The global certificate(s) for the Capital 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 global certificate(s) for the Capital 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 Capital Securities
pursuant to an Amended and Restated Trust Agreement among The Wilmington
Trust Company, as Property Trustee, The Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein (collectively,
the "Trustees"), and the Company, in substantially the form heretofore
delivered to the Underwriters, said Agreement being hereinafter referred to
as the "Trust Agreement." In connection with the issuance of the Capital
Securities, the
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Company proposes (i) to issue its Subordinated Debentures (the
"Debentures") pursuant to an Indenture between the Company and The
Wilmington Trust Company, as debenture trustee (the "Indenture") in
substantially the form heretofore delivered to the Underwriters and (ii) to
guarantee certain payments on the Capital Securities pursuant to a Capital
Securities Guarantee Agreement between the Company and The Wilmington Trust
Company, as guarantee trustee (the "Guarantee") in substantially the form
heretofore delivered to the Underwriters, to the extent described therein.
3. PUBLIC OFFERING OF THE CAPITAL SECURITIES.
As soon after the Registration Statement becomes effective as the
Underwriters deem advisable, the Underwriters shall make a public offering of
the Capital 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 Capital Securities as interests in a direct
participation program, the offering of the Capital Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's Conduct
Rules.
The Underwriters may reserve and sell such of the Capital 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
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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 Capital 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 Capital 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
Capital Securities as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; in case any Underwriter is required so as to comply
with all applicable laws and 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 Capital
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 Capital
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 Capital
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 Capital Securities, except that either Offeror
shall not be required
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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 Capital Securities shall
have been qualified as above provided, the Offerors will make and file such
statements and reports in each year as are or may be reasonably required by
the laws of such jurisdiction.
(d) The Offerors will furnish to the Representative, as soon as available,
copies of the Registration Statement (as filed in XXXXX format, including
exhibits, with the Commission's confirmation of filing), each Preliminary
Prospectus, the Prospectus and any amendment or supplements to such
documents, including any prospectus prepared to permit compliance with
Section 10(a)(3) of the Act, all in such quantities as you may from time to
time reasonably request.
(e) The Offerors will make generally available to their 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 Capital
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 Capital
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 Capital 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 Capital 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
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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 Capital Securities other than pursuant to this Agreement, any other
beneficial interests in the assets of the Trust or any securities of the
Trust or the Company that are substantially similar to the Capital
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 or prior
to the Closing Date all expenses and fees (other than fees of Underwriters'
Counsel, except as provided in (vi) 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) the printing,
engraving, issuance and delivery of the Capital Securities, including any
transfer or other taxes payable thereon, (iv) the qualification of the
Capital 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 all disbursements and fees in
connection therewith, (v) fees and expenses of the Trust's transfer agent,
(vi) 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 Capital
Securities on the NASDAQ-NM and any other exchange.
(b) If this Agreement is terminated by the Representative in accordance
with the provisions of Section 6, Section 10(b) or Section 12, or if the
Offerors shall terminate this Agreement under Section 10(a), unless the
basis upon which the Representative terminates this Agreement results from
the default or omission of any Underwriter, the Company shall reimburse and
indemnify the Underwriters for all of their reasonable out-of-pocket
expenses, including the fees and disbursements of Underwriters' Counsel,
which are in excess of $50,000, up to a maximum of $25,000.
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
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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 Capital
Securities and any other information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
Rules and Regulations under the Act within the prescribed time period, and,
prior to the Closing Date, the Offerors shall have provided evidence
satisfactory to the Representative of such timely filing, or a post-
effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirements of Rule
430A of the Rules and Regulations under the Act.
(b) The Representative shall not have advised the Offerors that the
Registration Statement, or any amendment thereto, contains an untrue
statement of fact that, in the Representative's opinion or in the opinion
of Underwriters' Counsel, is material, or omits to state a fact that, in
the Representative's opinion or in the opinion of Underwriters' Counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading, or that the Prospectus, or any
supplement thereto, contains an untrue statement of fact that, in the
Representative's opinion or in the opinion of Underwriters' Counsel, is
material, or omits to state a fact that, in the Representative's opinion or
in the opinion of Underwriters' Counsel, is material and is required to be
stated therein or is necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) On the Closing Date the Representative shall have received from
Underwriters' Counsel the favorable opinion to the effect that:
(i) the Capital 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
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state that such counsel has participated in conferences with
officers and other representatives of the Company, counsel for
the Company, representatives of the independent certified public
accountants for the Company and the Representative, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any
responsibility for, nor has such counsel independently verified,
the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus (except as
to matters referred to in subparagraph (i) above of this Section
6(c)), no facts have come to the attention of such counsel
(relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company) that lead them
to believe that either the Registration Statement or any
amendment thereto, at the time such Registration Statement or
amendment became effective or any Preliminary Prospectus (other
than information omitted pursuant to Rule 430A) or the Prospectus
or any amendment or supplement thereto as of the date of such
opinion contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (it being understood that such counsel need express no
view with respect to the financial statements and schedules and
other financial and statistical data included in any Preliminary
Prospectus, the Registration Statement (including any exhibit
thereto) or the Prospectus or any amendment or supplement
thereto); and
(iii)each of the Preliminary Prospectuses, the Registration Statement
and the Prospectus and any amendments or supplements thereto
(other than the financial statements and schedules, related notes
and other financial and statistical data included therein, as to
which no opinion need be rendered) comply as to form in all
material respects with the requirements of the Act and the Rules
and Regulations.
(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 bank holding company under the BHC Act, and (C)
the Company is duly qualified as a foreign corporation and in
good standing in each jurisdiction in which its ownership of
property or the conduct of its businesses requires such
qualification (except where the failure to so qualify would not
have a Material Adverse Effect on the assets or properties,
business, results of
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operations or financial condition of the Company, taken as a
whole); 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; to such counsel's knowledge, based solely upon review of
the Company's and Subsidiaries' stock records, 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 or hold 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 Capital Securities of the Trust conform in all material
respects to the description thereof contained in the Prospectus
under the captions "Capitalization," "Description of Subordinated
Debentures," "Description of Guarantee," and "Description of
Capital Securities." The capital stock of the Company authorized
and issued as of June 30, 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
Prospectus. To such counsel's knowledge, the Capital Securities
are not and will not be subject to any preemptive rights under
the Massachusetts Business Corporation Law or similar statutory
rights. The issuance, sale and delivery of the Capital
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
Capital 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 Capital Securities are in the
form attached as Exhibit A-1 to the Trust Agreement; and the
Capital 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,
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without limitation, the Trust Agreement) of the Offerors or the
Subsidiaries, or, to the best of such counsel's knowledge, any
agreement or other instrument to which either Offeror or any of
the Subsidiaries is a party or by which either Offeror or any of
the Subsidiaries may be bound. To the best of such counsel's
knowledge, holders of securities of the Offerors either do not
have any right that, if exercised, would require the Offerors to
cause such securities to be included in the Registration
Statement or any registration statement to be filed by the
Company within 180 days of the date hereof or to require the
Company to file a registration statement under the Act during
such 180 day period, or have waived such right.
(iv) the Registration Statement is effective under the Act, and, if
applicable, the filing of all pricing and other information has
been timely made in the appropriate form under Rule 430A of the
Rules and Regulations under the Act, and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceedings
for that purpose have been instituted or, to such counsel's
knowledge, threatened by the Commission;
(v) the Registration Statement and the Prospectus and any amendment
or supplement thereto (other than the financial statements and
schedules, related notes and other financial and statistical data
included therein, as to which no opinion need be rendered) comply
as to form in all material respects with the requirements of the
Act and the Rules and Regulations under the Act; and to the best
of such counsel's knowledge, there are no contracts, agreements,
leases or other documents of a character required to be disclosed
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so disclosed
or filed;
(vi) (A) to such counsel's knowledge, there is not pending or
threatened against the Offerors or any of the Subsidiaries, or
involving any of 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
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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
Capital 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, any voting trust
agreement or any stockholders agreement, or any indenture,
mortgage, deed of trust, note, loan or credit agreement or other
material agreement or instrument known to such counsel to which
either of the Offerors or any of the Subsidiaries is a party or
by which any of them is or may be bound or to which any of their
respective properties or assets (tangible or intangible) is or
may be subject, or (C) any statute, rule or regulation or, to
such counsel's knowledge, any judgment, decree or order
applicable to either of the Offerors or any of the Subsidiaries
of any arbitrator, court, regulatory body or administrative
agency or other governmental agency or body having jurisdiction
over either of the Offerors or any of the Subsidiaries or any of
their respective activities or properties, the violation of which
would have a Material Adverse Effect;
(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) no consent, approval, authorization or order of, and no filing
with, any federal or state court, regulatory body, government
agency or authority (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 Capital
Securities by the Underwriters, as to which no opinion need be
rendered) is required in connection with the issuance of the
Capital Securities pursuant to the Prospectus and the
Registration Statement, the performance of this Agreement and the
transactions contemplated hereby;
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(xi) 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);
(xii)the statements in the Prospectus (or incorporated therein by
reference) under the captions "Capitalization," "Description of
Capital Securities," "Description of Subordinated 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, descriptions of statutes,
written contracts, or rules or regulations, are correct in all
material respects; and
(xiii)Except as set forth in the Prospectus (or incorporated therein),
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
-23-
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 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) In addition to the provisions of Section 6(d)(1), Xxxxxxx Xxxxxxxx &
Xxxx, shall have also 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 Common Securities and the Capital
Securities.
(ii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Company and the trustees of the Trust
enforceable against them 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 Capital 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 Capital 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 Capital Securities may be obligated, pursuant to the Trust
-24-
Agreement, (A) to provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from the
transfers or exchanges of certificates of Capital Securities, and
(B) to provide security or indemnity in connection with requests
of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement.
(v) Under the Trust Agreement and the Delaware Act, the issuance of
the Capital Securities is not subject to preemptive rights.
(vi) The issuance and sale by the Trust of the Capital 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
-25-
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 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
-26-
has occurred no event required to be set forth in an amended or
supplemented Prospectus that has not been set forth.
References to the Registration Statement and the Prospectus in this subsection
(g) are to such documents as amended and supplemented at the date of such
certificate.
(h) On the date of this Agreement, the Representative shall have received a
letter in form and substance satisfactory to the Representative and the
Underwriters' Counsel addressed to the Underwriters and dated the date of
this Agreement from Deloitte 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 Deloitte a letter, dated as of the Closing Date reaffirming
the statements made in the letter furnished by Deloitte 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 Capital Securities.
(j) No order suspending the sale of the Capital 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 Capital 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 and the Indenture.
(m) The NASD, upon review of the terms of the public offering of the
Capital 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,
-27-
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 Capital 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 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.
-28-
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 Capital 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) 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
-29-
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 Capital 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 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 Capital Securities to the Underwriters.
-30-
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
Capital 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 Capital 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
Capital Securities for offering or the release by the Representative for
publication of the first newspaper advertisement that is subsequently published
relating to the Capital Securities.
10. TERMINATION.
(a) Subject to subsection (d) of this Section 10, the Offerors may at any
time before this Agreement becomes effective in accordance with Section 9,
terminate this Agreement.
(b) Subject to subsection (d) of this Section 10, the Representative shall
have the right to terminate this Agreement, (i) if any calamitous domestic
or international event or act or occurrence has materially disrupted, or in
the Representative's opinion will in the immediate future materially
disrupt, general securities markets in the United States; or (ii) if
trading on the New York Stock Exchange, the NASDAQ-NM or in the over-the-
counter market shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities
shall have been required on the over-the-counter market by the NASD or by
order of the Commission or any other government authority having
jurisdiction; or (iii) if the United States shall have become involved in a
war or major hostilities; or (iv) if a banking moratorium has been declared
by the State of New York, The Commonwealth of Massachusetts or any federal
authority; or (v) if a moratorium in foreign exchange trading has been
declared; or (vi) if the Company or the Trust shall have sustained a loss
material or substantial to the Company or the Trust by fire, flood,
accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act that, whether or not such loss shall have been insured, will,
in the Representative's reasonable opinion, make it inadvisable to proceed
with the delivery of the Capital Securities; or (vii) if there shall have
been a Material Adverse Effect.
(c) If any party hereto elects to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section 10,
such party shall notify, on the same day as such election is made, the
other parties hereto in accordance with the provisions of Section 13
hereof.
(d) Notwithstanding any contrary provision contained in this Agreement, any
election hereunder or any termination of this Agreement (including, without
limitation, pursuant to Sections 11 and 12 hereof), and whether or not this
Agreement is otherwise carried out, the provisions of Sections 5, 7 and 9
shall not be in any way affected by such election or termination or failure
to carry out the terms of this Agreement or any part thereof.
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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 Capital 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 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 Capital 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 Capital 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.
12. DEFAULT BY THE TRUST.
If the Trust shall fail at the Closing Date to sell and deliver the number
of Capital 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
-32-
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, Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. Notices to the Company or the Trust shall
be directed to c/o Westbank Corporation, 000 xxxx Xxxxxx, Xxxx Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000-0000, with a copy to Xxxxxxx X. Xxxxxxxx, Esq., Xxxxxxx
Xxxxxxxx & Wood, 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
Capital 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.
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.
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Very truly yours,
WESTBANK CORPORATION
By: _________________________________________
Name:
Title:
WESTBANK CAPITAL TRUST I
By: _________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED AS OF THE
DATE FIRST ABOVE WRITTEN:
XXXXXX XXXXXXX XXXXXX GULL
By: _________________________________________
Name:
Title:
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SCHEDULE A
NAME NUMBER OF CAPITAL SECURITIES
---- ----------------------------
Xxxx, Xxxx & Co., Inc.
Xxxxxx Xxxxxxx Xxxxxx Gull
Total 1,750,000
