Exhibit 1
CAPITAL CROSSING PREFERRED CORPORATION
% NON-CUMULATIVE EXCHANGEABLE PREFERRED STOCK, SERIES D
(LIQUIDATION PREFERENCE $25.00 PER SHARE)
EXCHANGEABLE INTO SHARES PREFERRED SHARES OF
CAPITAL CROSSING BANK
FORM OF UNDERWRITING AGREEMENT
, 2004
▇▇▇▇▇▇ BROTHERS INC.
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
As Representatives of the several
Underwriters named in Schedule 1,
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Capital Crossing Preferred Corporation, a Massachusetts corporation
(the "Company"), and Capital Crossing Bank, a Massachusetts-chartered trust
company (the "Bank"), hereby confirm their agreement with you and each of the
other Underwriters named in Schedule 1 hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 8 hereof), for whom ▇▇▇▇▇▇ Brothers Inc., RBC
▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated are acting as
representatives (in such capacity, the "Representatives"), with respect to
the issue and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of shares of the
Company's % Non-cumulative Exchangeable Preferred Stock, Series D (the
"Series D Preferred Stock") set forth in said Schedule 1, and with respect to
the grant by the Company to the Underwriters, acting severally and not
jointly, of the option described in Section 2 hereof to purchase all or any
part of additional shares of such preferred stock to cover over-allotments,
if any. The 1,500,000 shares of Series D Preferred Stock (the "Firm Stock")
to be purchased by the Underwriters and all or any part of the 225,000 shares
of Series D Preferred Stock subject to the option described in Section 2
hereof (the "Option Stock") are hereinafter called, collectively, the
"Stock." Each share of the Series D Preferred Stock is exchangeable, on the
terms to be set forth in the Company's Restated Articles of Organization,
into one-hundredth of one share of the Bank's % Non-cumulative Preferred
Shares, Series E (the "Bank Preferred Stock").
Upon authorization by the Representatives of the release of the Firm
Stock, the several Underwriters propose to offer the Firm Stock for sale upon
the terms and conditions set forth in the Prospectus.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (no. 333-114292) covering
the registration of the Stock under the 1933 Act of 1933, as amended (the "1933
Act"), including the related preliminary prospectus or prospectuses. Promptly
after execution and delivery of this Agreement, the Company will prepare and
file a prospectus in accordance with the provisions of Rule 430A ("Rule 430A")
of the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations. The information included in such prospectus that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters for use in connection with the
offering of the Stock is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System ("▇▇▇▇▇").
The Bank has prepared a preliminary offering circular relating to the
Bank Preferred Stock which has been annexed to, and incorporated by reference
in, the preliminary prospectus and filed with the Federal Deposit Insurance
Corporation (the "FDIC") as part of the Registration Statement. The Bank will
promptly prepare an offering circular (which includes the information (the
"Pricing Information") excluded from the preliminary offering circular) to be
annexed to and incorporated by reference in the Prospectus. Each offering
circular used before the time the Registration Statement is declared effective
by the Commission and any offering circular that omits the Pricing Information
that is used after such effectiveness and prior to the date hereof is herein
called a "preliminary offering circular." The offering circular, as amended at
the time the Registration Statement becomes effective (and including the Pricing
Information), is hereinafter referred to as the "Offering Circular" except that
if any amended or supplemented offering circular shall be provided to the
Underwriters by the Bank for use in connection with the offering of the Bank
Preferred Stock which differs from the Offering Circular at the time the
Registration Statement became effective, the term "Offering Circular" shall
refer to such newly amended or supplemented offering circular from and after the
time it is first provided to the Underwriters for such use.
The Registration Statement, any preliminary prospectus, the Prospectus,
any preliminary offering circular and the Offering Circular are collectively
referred to herein as the "Offering Documents."
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The Bank and the Company have entered into (i) an Advisory Agreement,
dated as of March 31, 1998 (the "Advisory Agreement"), (ii) a Master Service
Agreement, dated as of March 31, 1998 (the "Master Service Agreement"), (iii) a
Master Mortgage Loan Purchase Agreement, dated as of March 31, 1998 (the "Master
Loan Purchase Agreement", and (iv) a Dividend Restriction Agreement, dated as of
, 2004 (the "Dividend Restriction Agreement") (collectively, the
"Bank/Company Documents").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
BANK. The Company and the Bank jointly and severally represent, warrant and
agree that:
(a) based solely on oral advice provided to the Company by the
Commission, each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act; the
Company has received no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement and no
proceedings for that purpose have been instituted or are pending or, to
the Company's and the Bank's knowledge, have been threatened by the
Commission; and any request on the part of the Commission to the
Company for additional information has been complied with;
(b) the Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all material respects to
the requirements of the 1933 Act and the 1933 Act Regulations; the
Registration Statement and the Prospectus (including the Offering
Circular) do not and will not, as of the applicable effective date (as
to the Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of
the Prospectus and any amendment or supplement thereto, in the light of
the circumstances under which they were made); PROVIDED that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein;
(c) Attachment A to the Offering Circular, at the time it was
filed with the FDIC complied in all material respects with the
requirements of the FDIC and did not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein in the light of the circumstances under
which they were made not misleading;
(d) each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted or
required by Regulation S-T;
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(e) the financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly in all material respects the
financial condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as disclosed in the notes to such financial
statements;
(f) the Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
Commonwealth of Massachusetts, is duly qualified or licensed to do
business and in good standing as a foreign corporation in each
jurisdiction in which the conduct of its businesses or ownership or
leasing of its property requires such qualification or licensing and in
which the failure, individually or in the aggregate, to be so qualified
or licensed would have a material adverse effect on the consolidated
financial position, securityholders' equity, results of operations, or
business of the Company, or of the Bank and its subsidiaries (as
defined in Section 14), taken as a whole (a "Material Adverse Effect"),
and has all corporate power and authority necessary to own or hold its
properties and to conduct its business as currently conducted and as
described in the Prospectus; the Company has no subsidiaries;
(g) the Bank is a Massachusetts-chartered trust company duly
organized and validly existing under the laws of the Commonwealth of
Massachusetts, is authorized to transact the business of banking
thereunder, is duly qualified or licensed to do business and in good
standing as a foreign corporation in each jurisdiction in which the
conduct of its business or ownership or leasing of its property
requires such qualification or licensing and in which the failure to be
so qualified or licensed would have a Material Adverse Effect, and has
the corporate power and authority necessary to own or hold its
properties and to conduct its businesses as currently conducted and as
described in the Prospectus and Offering Circular; the Bank is a member
of the Federal Home Loan Bank of Boston (the "FHLB"); each subsidiary
of the Bank has been duly incorporated and is validly existing and in
good standing under the laws of its jurisdiction of incorporation, is
duly qualified or licensed to do business and in good standing as a
foreign corporation in each jurisdiction in which the conduct of its
business or ownership or leasing of property requires such
qualification or licensing and in which the failure, individually or in
the aggregate, to be so qualified or licensed would have a Material
Adverse Effect, and has the corporate power and authority necessary to
own or hold its properties and to conduct its businesses as described
in the Offering Circular;
(h) the deposit accounts of the Bank are insured by the FDIC
to the fullest extent permitted by law and the rules and regulations of
the FDIC, and no proceedings for the termination of such insurance are
pending or, to the knowledge of the Bank, threatened;
(i) (i) neither the Bank nor any of the Bank's other
subsidiaries is in violation of its articles or bylaws, (ii) the
Company is not in violation of its Restated Articles of Organization or
its bylaws, and (iii) neither the Company, the Bank nor any of the
Bank's other subsidiaries are in breach or default, nor has any event
occurred which with notice, lapse of time, or both would constitute
such a breach or default, in the performance or
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observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, bank loan or
credit agreement or other agreement or instrument to which the Company,
the Bank or any of the Bank's other subsidiaries is a party or by which
any of them is bound, except in the case of this clause (iii) for such
breaches or defaults which would not, individually or in the aggregate,
have a Material Adverse Effect; nor is the Company, the Bank or any of
the Bank's other subsidiaries in violation in any material respect of
any law, ordinance, government rule, regulation or court decree to
which it or its properties or assets may be subject;
(j) each of the Company and the Bank has all requisite power
and authority to execute, deliver and perform its obligations under
this Agreement and the Bank/Company Documents to which it is a party;
(k) the execution and delivery of this Agreement and the
Bank/Company Documents, the consummation of the transactions
contemplated hereby and thereby (including the offering and sale of the
Stock) and the consummation of the transactions contemplated by the
Prospectus (including without limitation the issuance and sale of the
Stock and the use of the proceeds from the sale of the Stock as
described in the Prospectus under the caption "Use of Proceeds"), the
performance by each of the Company and the Bank of their respective
obligations hereunder and thereunder and the issuance and delivery of
the Bank Preferred Stock upon the occurrence of an Automatic Exchange
(as defined in the Prospectus), will not (or, in the case of the
Advisory Agreement, the Master Service Agreement and the Master
Mortgage Loan Purchase Agreement, did not) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under (nor constitute any event which with notice, lapse of
time, or both would constitute a breach or violation of, or default
under), any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, the Bank or any of the
Bank's other subsidiaries is a party or by which the Company, the Bank
or any such other subsidiary is bound or to which any of their
respective properties or assets are subject, except for such breaches,
violations or defaults which would not, either individually or in the
aggregate, have a Material Adverse Effect; nor will (or, in the case of
the Advisory Agreement, the Master Service Agreement and the Master
Mortgage Loan Purchase Agreement, did) such actions result in any
violation of the provisions of the Company's Restated Articles of
Organization or bylaws of the Company or the charter or bylaws or other
constituent documents of the Bank or any of the Bank's other
subsidiaries or of any federal, state or local law, statute, regulation
or rule or any decree, judgment or order of any court or governmental
agency or body having jurisdiction over the Company, the Bank, any of
the Bank's other subsidiaries or any of their respective properties or
assets;
(l) this Agreement has been duly authorized, executed and
delivered by each of the Company and the Bank;
(m) each of the Bank/Company Documents to which the Company
and the Bank is party has been duly authorized, executed and delivered
by such entity and constitutes the valid and binding agreement of such
entity, enforceable against it in accordance with its terms (subject to
(i) in the case of the Company, applicable bankruptcy, insolvency,
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reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally from time to time in effect and,
in the case of the Bank, insolvency, receivership, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally or the rights of creditors of depository institutions
the accounts of which are insured by the FDIC, and (ii) general
principles of equity, regardless of whether considered in a proceeding
in equity or at law, and an implied covenant of good faith and fair
dealing);
(n) there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the 1933 Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act;
(o) there are no contracts or documents which are required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits thereto which have not been so described and filed as
required;
(p) all transactions between the Bank and its subsidiaries, on
the one hand, and the officers, directors and any affiliates of such
persons or companies, on the other hand, required to be disclosed in
the Prospectus and the Offering Circular have been accurately disclosed
in all material respects;
(q) the Company and the Bank have an authorized and
outstanding capitalization as of December 31, 2003 as set forth in the
Prospectus under the caption "Capitalization" and as set forth in the
Consolidated Balance Sheets included in Attachment A to the Offering
Circular, respectively; all of the issued and outstanding shares of
capital stock of the Company and the Bank have been duly and validly
authorized and issued and are fully paid and non-assessable and none of
the capital stock of the Company or the Bank was issued in violation of
any preemptive rights or similar rights arising by operation of law,
under the Restated Articles of Organization or bylaws of the Company or
the Bank or under any agreement to which the Company or the Bank is a
party; all of the issued and outstanding shares of capital stock of
each other subsidiary of the Bank have been duly and validly authorized
and issued and are fully paid and non-assessable and (except for
directors' qualifying shares) are owned directly or indirectly by the
Bank, free and clear of all liens, encumbrances, equities or claims;
(r) all of the shares of Series D Preferred Stock have been
duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable; no preemptive rights or other similar
rights exist with respect to the issuance of the Series D Preferred
Stock; upon filing of a Certificate of Vote of Directors Establishing a
Class or Series of Stock relating to the Bank Preferred Stock (the
"Certificate of Vote") with the Secretary of the Commonwealth of
Massachusetts, all of the shares of Bank Preferred Stock issuable upon
the occurrence of an Automatic Exchange will be duly and validly
authorized and
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reserved for issuance upon such occurrence and, when issued and
delivered in accordance with the terms of the Amended and Restated
Articles of Organization of the Bank, to be amended by the Certificate
of Vote relating to the Bank Preferred Stock in respect of the Bank
Preferred Stock, will be duly and validly issued, fully paid and
nonassessable; and the Series D Preferred Stock conform and the Bank
Preferred Stock issuable upon the occurrence of an Automatic Exchange
will conform upon any such issuance, to the descriptions thereof
contained in the Offering Documents in all material respects; no
preemptive rights or other similar rights exist with respect to the
issuance of the Bank Preferred Stock;
(s) no approval, authorization, consent or order of or filing
or registration with any court or any federal, state or local
governmental or regulatory commission, board, body, authority or agency
is required in connection with the issuance, offering and sale of the
Series D Preferred Stock as contemplated hereby, other than any
necessary qualification under the securities or blue sky laws of the
various domestic or foreign jurisdictions in which the Series D
Preferred Stock are being offered by the Underwriters, and except as
have already been obtained or will be obtained prior to the First
Delivery Date from the Commissioner of Banks of the Commonwealth of
Massachusetts (the "Commissioner"), the FHLB or the FDIC;
(t) the shares of Bank Preferred Stock issuable upon the
occurrence of an Automatic Exchange are exempt securities under Section
3(a)(2) of the 1933 Act and no registration of the Bank Preferred Stock
under the 1933 Act and no other approval, authorization, consent or
order of or filing or registration with any court or any federal, state
or local governmental or regulatory commission, board, body, authority
or agency is required in connection with the issuance and delivery of
the Bank Preferred Stock as contemplated by the Amended and Restated
Articles of Organization of the Bank for the Bank Preferred Stock,
other than any necessary qualification under the securities or blue sky
laws of the various domestic or foreign jurisdictions in which the Bank
Preferred Stock may be issued, and except for (i) the approval of the
Commissioner which will be obtained prior to the First Delivery Date
and (ii) the filing of the Certificate of Vote with the Secretary of
the Commonwealth of Massachusetts which will be filed immediately
following the First Delivery Date;
(u) KPMG LLP, the accountants who certified certain financial
statements of the Company and the Bank for the years ended December 31,
2003, 2002 and 2001 included in the Registration Statement and the
Offering Circular are independent public accountants within the meaning
of the 1933 Act and the 1933 Act Regulations;
(v) the Company and the Bank have good and marketable title in
fee simple to all real property and good and valid title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Offering Documents or such as do not materially affect the value of
such property and do not materially interfere with the use made and
proposed to be made of such property by the Company or the Bank, as the
case may be; and all real property and buildings held under lease by
the Company and the Bank are held by them under valid, subsisting and
enforceable leases, with such exceptions as do not materially interfere
with the use made
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and proposed to be made of such property and buildings by the Company,
the Bank or the Bank's other subsidiaries;
(w) except as described in the Offering Documents, there are
no legal or governmental proceedings pending or, to the knowledge of
the Company or the Bank, threatened, to which the Company, the Bank or
any of the Bank's other subsidiaries are party or of which any of their
respective properties are the subject, which if determined adversely
might have a Material Adverse Effect or affect the subject matter of
this Agreement or the Bank/Company Documents, or the Series D Preferred
Stock or Bank Preferred Stock;
(x) the Company and the Bank have filed (or have been part of
a consolidated reporting group which has filed) all federal, and all
material state and local income and franchise tax returns required to
be filed through the date hereof (taking into account any permitted
extensions) and have paid all taxes due, and no tax deficiency has been
determined adversely to the Bank or any of its subsidiaries which has
had (nor does the Company or the Bank have any knowledge of any tax
deficiency which, if determined adversely to the Company or to the Bank
or any of its other subsidiaries, is reasonably likely to have) a
Material Adverse Effect;
(y) since the date as of which information is given in the
Offering Documents through the date hereof, and except as may otherwise
be disclosed in the Offering Documents, neither the Company nor the
Bank has (i) issued or granted any securities, (ii) incurred any
liability or obligation, direct or contingent, except, in the case of
the Bank, for liabilities and obligations which were incurred in the
ordinary course of business, (iii) entered into any transaction not in
the ordinary course of business, or (iv) declared or paid any dividend
on its capital stock, except for dividends declared in the ordinary
course of business and consistent with past practice;
(z) there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company, the Bank or its other subsidiaries (or, to the knowledge of
the Company or the Bank, any of their respective predecessors in
interest) at, upon or from any of the properties now or previously
owned or leased by them in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation
or remedial action which would not have, or would not be reasonably
likely to have, individually or in the aggregate with all such
violations and remedial actions, a Material Adverse Effect; there has
been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company, the Bank or any of the Bank's other
subsidiaries or with respect to which the Company, the Bank or any of
the Bank's other subsidiaries have knowledge, except for any such
spill, discharge, leak, emission, injection, escape, dumping or release
which would not have or would not be reasonably likely to have,
individually or in the aggregate with all such spills, discharges,
leaks,
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emissions, injections, escapes, dumpings and releases, a Material
Adverse Effect; and the terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection;
(aa) neither the Bank nor any of its subsidiaries (including
the Company) has sustained, since the date of the latest audited
financial statements included in the Offering Documents, any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Documents; and, since
such date, there has not been any change in the capital stock or
long-term debt of the Company or the Bank or any of the Bank's other
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company or of the Bank and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Offering Documents;
(bb) neither the Bank nor any of its subsidiaries (including
the Company) is party to or otherwise the subject of any consent
decree, memorandum of understanding, written commitment or other
written supervisory agreement with any federal or state authority or
agency charged with the supervision or insurance of the Bank and its
subsidiaries;
(cc) the Company is not, and upon the sale of the Series D
Preferred Stock and the use of the proceeds therefrom as contemplated
herein and in the Offering Documents will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act"); and the transactions
contemplated by the Offering Documents and the conduct of the Company's
business as set forth in the Offering Documents will not cause the
Company to become an "investment company" subject to registration under
the Investment Company Act;
(dd) the Bank is not an "investment company" as such term is
defined in the Investment Company Act;
(ee) (1) at all times commencing with the Company's tax year
ending on December 31, 1998 through the tax year ending on December 31,
2003 and for the period beginning January 1, 2004 and ending on the
date hereof, the Company was organized and operated in conformity with
the requirements for qualification as a REIT pursuant to sections 856
through 860 of the Code, and (2) its organization and proposed method
of operation with enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code;
(ff) the Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Stock;
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(gg) an application to list the Stock on The Nasdaq National
Market has been filed and notification has been received that such
listing has been approved, subject to notice of issuance and sale of
the Stock.
2. PURCHASE OF THE STOCK BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 1,500,000 shares of
the Firm Stock to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 225,000 shares of Option Stock. Such option is exercisable as
provided in Section 3 hereof. Shares of Option Stock shall be purchased
severally for the account of the Underwriters in proportion to the number of
shares of Firm Stock set forth opposite the name of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Stock other than in 100 share
amounts.
The price of both the Firm Stock and any Option Stock shall be $
per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on any Delivery Date (as hereinafter defined), except upon payment for
all the Stock to be purchased on such Delivery Date as provided herein.
3. DELIVERY OF AND PAYMENT FOR STOCK. Delivery of and payment for the
Firm Stock shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New York City time,
on the third or (as permitted under Rule 15c6-1 under the Exchange Act) fourth
business day following the date of this Agreement or at such other date or place
as shall be determined by agreement between the Representatives and the Company.
This date and time are sometimes referred to as the "First Delivery Date." On
the First Delivery Date, payment of the purchase price for the Firm Stock shall
be made by wire transfer in same day funds to or as directed by the Company upon
delivery of certificates representing the Firm Stock to the Representatives
through the facilities of The Depository Trust Company for the respective
accounts of the several Underwriters. Certificates for the Firm Stock shall be
registered in such name or names and shall be in such denominations as the
Representatives may request at least two days prior to the First Delivery Date.
The Company will permit the Representatives to examine and package such
certificate for delivery at least one full business day prior to the First
Delivery Date.
The option granted in Section 2 hereof will expire 30 days after the
date of this Agreement and may be exercised in whole or in part from time to
time by written notice being given to the Company by the Representatives. Such
notice shall set forth the aggregate number of shares of Option Stock as to
which the option is being exercised, the names in which the
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shares of Option Stock are to be registered, the denominations in which the
shares of Option Stock are to be issued and the date and time, as determined by
the Representatives, when the shares of Option Stock are to be delivered;
PROVIDED, HOWEVER, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. The date and time the
shares of Option Stock are delivered are sometimes referred to as a "Second
Delivery Date" and the First Delivery Date and any Second Delivery Date are
sometimes each referred to as a "Delivery Date."
Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 3 (or at
such other place as shall be determined by agreement between the Representatives
and the Company) at 10:00 A.M., New York City time, on such Second Delivery
Date. On such Second Delivery Date, payment of the purchase price for the Option
Stock shall be made by wire transfer in same day funds to or as directed by the
Company upon delivery of certificates representing the Option Stock to the
Representatives through the facilities of The Depository Trust Company for the
respective accounts of the several Underwriters. Certificates for the Option
Stock shall be registered in such name or names and shall be in such
denominations as the Representatives may request at least two days prior to the
Second Delivery Date. The Company will permit the Representatives to examine and
package such certificate for delivery at least one full business day prior to
the Second Delivery Date.
4. FURTHER AGREEMENTS OF THE COMPANY AND THE BANK. The Company and the
Bank jointly and severally agree:
(a) to prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives (which approval
will not be unreasonably withheld or delayed) and to file such Rule
462(b) Registration Statement with the Commission on the date hereof;
to prepare the Prospectus in a form approved by the Representatives and
to file such Prospectus pursuant to Rule 424(b) under the 1933 Act not
later than Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the 1933 Act; to make no further amendment or any supplement to
the Registration Statement or to the Prospectus except as permitted
herein; to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any preliminary prospectus or the Prospectus, of the
suspension of the qualification of the Stock for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any preliminary prospectus or
12
the Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal;
(b) to furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
(c) to deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits) and (ii) each preliminary prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required at any time after the effective
date of the Registration Statement in connection with the offering or
sale of the Stock or any other securities relating thereto and if at
such time any events shall have occurred as a result of which the
Prospectus (including the Offering Circular) as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement the
Prospectus (including the Offering Circular) in order to comply with
the 1933 Act, to notify the Representatives and, upon their request, to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance;
(d) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the reasonable judgment of the Company or the
Representatives, be required by the 1933 Act or requested by the
Commission;
(e) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the 1933 Act Regulations, to furnish
a copy thereof to the Representatives and counsel for the Underwriters
and obtain the consent of the Representatives to the filing, which
consent will not be unreasonably withheld or delayed;
(f) as soon as practicable after the effective date of the
Registration Statement, to make generally available to the Company's
security holders and to deliver to the Representatives an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the 1933 Act and the 1933 Act
Regulations (including, at the option of the Company, Rule 158);
(g) promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as
13
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock; PROVIDED that in connection therewith the
Company shall not be required to qualify as a foreign corporation, or
to file a general consent to service of process in any jurisdiction, or
to subject itself to taxation in any such jurisdiction where it is not
then so subject;
(h) to use its commercially reasonable best efforts to cause
the Stock to be listed on The Nasdaq National Market;
(i) to apply the net proceeds received from the sale of the
Stock in the manner specified in the Prospectus under "Use of
Proceeds";
(j) to take such steps as shall be necessary to ensure that
neither the Bank nor any subsidiary shall become an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(k) to, for so long as the Stock is outstanding, in a timely
manner, take the procedural steps to continue to meet the requirements
for qualification and taxation as a REIT under the Code including
filing Form 1120-REIT as its federal income tax return annually; and
(l) to cooperate with the Underwriters and use their best
efforts to permit the Stock to be eligible for clearance and settlement
through the facilities of DTC.
5. EXPENSES. The Company and the Bank, jointly and severally, agree
to pay (a) the costs incident to the authorization, issuance, sale and
delivery of the Stock and any taxes payable in that connection; (b) the costs
incident to the preparation, printing and filing under the 1933 Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any preliminary prospectus, the Prospectus and any
amendment or supplement to the Prospectus, all as provided in this Agreement;
(d) the costs of producing and distributing this Agreement and any other
related documents in connection with the offering, purchase, sale and
delivery of the Stock; (e) the filing fees incident to securing the review by
the National Association of Securities Dealers, Inc. of the terms of sale of
the Stock; (f) any applicable listing or other fees; (g) the fees and
expenses of qualifying the Stock under the securities laws of the several
jurisdictions as provided in Section 4(h) hereof and of preparing, printing
and distributing a Blue Sky Memorandum (including related reasonable fees and
expenses of counsel to the Underwriters); (h) the costs and expenses of the
Bank and the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Stock,
including, without limitation, reasonable expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Bank and the Company, travel and lodging expenses of
the representatives and officers of the Bank and the Company and any such
consultants, and the cost of any aircraft chartered in connection with the
road show; and (i) all other costs and expenses incident to the performance
of the obligations of the Bank and the Company under this
14
Agreement; PROVIDED that, except as provided in this Section 5 and in Section 10
the Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Stock which they may sell
and the expenses of advertising any offering of the Stock made by the
Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company and the Bank
contained herein, to the performance by the Company and the Bank of their
respective obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 4(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) The Underwriters shall not have discovered and disclosed
to the Company on or prior to such Delivery Date that the Registration
Statement, Prospectus or Offering Circular or any amendment or
supplement thereto contains any untrue statement of a fact which, in
the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for
the Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein (in the light of
the circumstances under which they were made, in the case of the
Prospectus or Offering Circular or any amendment or supplement thereto)
not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Bank/Company Documents, the Series D Preferred Stock, the Bank
Preferred Stock, the Offering Documents, and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) ▇▇▇▇▇▇▇ Procter LLP shall have furnished to the
Representatives its written opinion or opinions (based on the
assumptions and subject to the exclusions contained therein), as tax
counsel to the Company and the Bank, addressed to the Underwriters and
dated such Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) the discussion set forth under the caption
"Federal Income Tax Consequences" in the Registration
Statement, to the extent that such discussion constitutes
matters of law, summaries of legal matters or legal
conclusions, is accurate in all material respects; and
15
(ii) the Company has been and will be organized
and operated in conformity with the requirements for
qualification and taxation as a REIT under the Code, and
the Company's proposed form of organization and method of
operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under
the Code.
(e) ▇▇▇▇▇▇▇ Procter LLP shall have furnished to the
Representatives its written opinion or opinions (based on the
assumptions and subject to the exclusions contained therein), as
counsel to the Company and the Bank, addressed to the Underwriters and
dated such Delivery Date, in form and substance satisfactory to the
Representatives, in the form attached as Appendix A.
(f) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions,
dated as of such Delivery Date, with respect to the issuance and sale
of the Stock, the Prospectus, the Offering Circular and other related
matters as the Underwriters may reasonably require, and the Company and
the Bank shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(g) With respect to the letter of KPMG LLP delivered to the
Representatives concurrently with the execution of this Agreement (the
"initial letter"), the Company shall have furnished to the
Representatives a letter (the "bring-down letter") of such accountants,
addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the
meaning of the 1933 Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(h) (A) Each of the Company and the Bank shall have furnished
to the Underwriters a certificate, dated such Delivery Date, of its
Chairman of the Board, its President or a Vice President and its Chief
Financial Officer stating that, to the best of their knowledge,
(i) the representations, warranties and agreements of
the Company or the Bank, as the case may be, in Section 1 are
true and correct, in all material respects, as of such
Delivery Date and the Company or the Bank, as the case may be,
has complied with all its agreements contained herein; and the
conditions of Section 6(a) have been fulfilled;
16
(ii) (A) since December 31, 2003, neither the Company
nor the Bank and its other subsidiaries have sustained any
loss or interference with their respective businesses from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set
forth or contemplated in the Offering Documents, and (B) since
such date there has not been any change in the capital stock
or long-term debt of the Bank or the Company or any change in
or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the
Company or of the Bank and its subsidiaries, otherwise than as
set forth or contemplated in the Offering Documents; and
(iii) they have carefully examined the Offering
Documents and, in their opinion (i) as of their respective
dates, the Offering Documents did not include any untrue
statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (ii) since the
date of the Prospectus and the Offering Circular, no event has
occurred which should have been set forth in a supplement or
amendment to the Prospectus or the Offering Circular in order
that such documents not include an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(i) Since December 31, 2003, neither the Company nor the Bank
and its other subsidiaries shall have sustained any loss or
interference with their respective businesses from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Documents
and (ii) since such date there shall not have been any change in the
capital stock or long-term debt of the Bank or the Company or any of
its other subsidiaries or any change in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company or the Bank or its other
subsidiaries, otherwise than as set forth or contemplated in the
Offering Documents, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to
proceed with the offering or the delivery of the Series D Preferred
Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Offering Documents.
(j) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's or the Bank's securities by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the 1933 Act Regulations,
and (ii) no such organization or Rating Agency, as the case may be,
shall have publicly
17
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's or the Bank's
securities.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Bank or the Company on any exchange or in the
over-the-counter market, shall have been suspended or the settlement of
such trading generally shall have been materially disrupted or minimum
prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States or there shall have occurred any other substantial
national or international calamity or crisis or (iv) there shall have
occurred such a material adverse change in general domestic or
international economic, political or financial conditions, including
without limitation as a result of terrorist activities, or the effect
of international conditions on the financial markets in the United
States shall be such, as to make it, in the judgment of the
Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Series D Preferred Stock being delivered on
such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) At such Delivery Date, the Stock shall have been approved
for quotation, subject to notice of issuance, on The Nasdaq National
Market.
(m) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(n) At such Delivery Date, the Certificate of Vote shall have
been filed with the Secretary of the Commonwealth of Massachusetts.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Company and the Bank hereby jointly and
severally agrees to indemnify and hold harmless each Underwriter, its
officers and employees and each person, if any, who controls an
Underwriter within the meaning of the 1933 Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Series D
Preferred Stock), to which such Underwriter, officer, employee or
controlling person may become subject, under the 1933 Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of,
or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained (A) in any
18
Offering Document, or in any amendment or supplement thereto, or (B) in
any blue sky application or other document prepared or executed by the
Company or the Bank (or based upon any written information furnished by
the Company or the Bank) specifically for the purpose of qualifying any
or all of the Series D Preferred Stock or the Bank Preferred Stock
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue
Sky Application"), (ii) the omission or alleged omission to state in
any Registration Statement, or in any amendment or supplement thereto,
or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, or
(iii) the omission or alleged omission to state in any preliminary
prospectus or preliminary offering circular, or the Prospectus or the
Offering Circular, any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and shall reimburse such Underwriter and each such
officer, employee or controlling person promptly upon demand for any
legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company and the Bank shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in any Offering Document, or in any such amendment or supplement
thereto, in reliance upon and in conformity with the written
information concerning such Underwriter furnished to the Company and
the Bank through the Representatives by or on behalf of such
Underwriter specifically for inclusion therein, which information
consists solely of the information specified in Section 7(e) hereof;
and PROVIDED, FURTHER, that neither the Company nor the Bank shall be
liable to any Underwriter under the indemnity agreement in this Section
7(a) to the extent, but only to the extent, the (w) such loss, claim,
damage, or liability of such Underwriter results from an untrue
statement of a material fact or an omission of a material fact
contained in the Preliminary Prospectus, which untrue statement or
omission was completely corrected in the Prospectus included in the
Registration Statement dated the date and the time as of which such
Registration Statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission (the "Final
Prospectus") and (x) such Underwriter sold shares of Stock to the
person alleging such loss, claim, liability, expense or damage without
sending or giving, at or prior to written confirmation of such sale, a
copy of the Final Prospectus and (y) the Company had previously
furnished sufficient quantities of the Final Prospectus to the
Underwriter within a reasonable amount of time prior to such sale or
such confirmation, and (z) such Underwriter failed to deliver the Final
Prospectus, if required by law to have so delivered it, and such
delivery would have been a complete defense against the person
asserting such loss, claim, liability, expense or damage. The foregoing
indemnity agreement is in addition to any liability which the Company
or the Bank may otherwise have to each Underwriter or to any officer,
employee or controlling person of each Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company and the Bank, their respective
officers and employees, each of
19
their respective directors and each person, if any, who controls the
Company or the Bank within the meaning of the 1933 Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company, the Bank or any such
director, officer or controlling person may become subject, under the
1933 Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Offering
Document, or in any amendment or supplement thereto, (ii) the omission
or alleged omission to state in any Registration Statment, or in any
amendment or supplement thereto, any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or (iii) the omission or alleged omission to state in any
preliminary prospectus or preliminary offering circular, or the
Prospectus or the Offering Circular, any material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter
furnished to the Company and the Bank through the Representative by or
on behalf of that Underwriter specifically for inclusion therein, and
shall reimburse the Company, the Bank and any such director, officer or
controlling person for any legal or other expenses reasonably incurred
by the Company, the Bank or any such director, officer or controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which the Underwriters may otherwise have to
the Company, the Bank or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, 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 claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 7 except to the extent it has been materially prejudiced
by such failure and, PROVIDED FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, that the Representatives shall have the right to employ
counsel (in addition to any local counsel) to represent jointly the
Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
20
sought by the Underwriters against the Company and the Bank under this
Section 7 if, in the reasonable judgment of the Representatives, it is
advisable for the Representatives and those Underwriters, officers,
employees and controlling persons to be jointly represented by separate
counsel due to the availability of one or more legal defenses available
to them which are different from or in addition to those available to
the indemnifying party, and in that event the reasonable fees and
expenses of such separate counsel shall be paid by the Company and the
Bank. No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment in favor of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 7(a) or 7(b) hereof in respect of
any loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Bank on the one hand and the
Underwriters on the other from the offering of the Series D Preferred
Stock or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Bank on the one hand
and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Bank on the one hand and the Underwriters on the other with respect to
such offering shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Series D Preferred Stock
purchased under this Agreement (before deducting expenses) received by
the Company and the Bank, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to
the Series D Preferred Stock purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the
Series D Preferred Stock under this Agreement, in each case as set
forth in the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company, the Bank or the
Underwriters, the intent of the parties and their relative knowledge,
access to information
21
and opportunity to correct or prevent such statement or omission. The
Company, the Bank and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section 7(d)
shall be deemed to include, for purposes of this Section 7(d), any
reasonable legal or other expenses incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Series D Preferred Stock
underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) Each Underwriter confirms and the Company and the Bank
acknowledge that paragraphs [ ] under the caption
"Underwriting" in the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the
Company and the Bank by or on behalf of the Underwriters specifically
for inclusion in the Offering Documents.
8. DEFAULTING UNDERWRITERS. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Stock which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock set
opposite the names of all the remaining non-defaulting Underwriters in Schedule
1 hereto; PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Stock on such Delivery Date if the
total number of shares of the Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares of the Stock to be purchased on such Delivery Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of shares of the Stock which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 2 hereof. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Stock to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option Stock)
shall terminate
22
without liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 5 and 10. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule 1 hereto who,
pursuant to this Section 8, purchases which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Bank or the Company for damages caused by its
default. If other underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or in any other document or arrangement.
9. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
and the Bank prior to delivery of and payment for the Series D Preferred Stock
if, prior to that time, any of the events described in Sections 6(i), 6(j) or
6(k) shall have occurred or if the Underwriters shall decline to purchase the
Series D Preferred Stock for any reason permitted under this Agreement.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company shall
fail to tender the Series D Preferred Stock for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of the Company or the
Bank to perform any agreement on their part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company or the Bank is not fulfilled, or (b) the Underwriters
shall decline to purchase the Series D Preferred Stock for any reason permitted
under this Agreement (including the termination of this Agreement pursuant to
Section 9 hereof), the Company and the Bank shall, jointly and severally,
reimburse the Underwriters for the reasonable fees and expenses of its counsel
and for such other reasonable out-of-pocket expenses as shall have been incurred
by them in connection with this Agreement and the proposed purchase of the
Series D Preferred Stock, and upon demand the Company and the Bank shall,
jointly and severally, pay the full amount thereof to the Underwriters. If this
Agreement is terminated pursuant to Section 8 by reason of the default of one or
more Underwriters, the Company and the Bank shall not be obligated to reimburse
any defaulting Underwriter on account of those expenses.
11. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission c/▇ ▇▇▇▇▇▇ Brothers Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Debt Capital
Markets (Fax: ▇▇▇-▇▇▇-▇▇▇▇) (with a copy in case of any notice pursuant
to Section 7(c) to the Director of Litigation, Office of the General
Counsel, Fax: ▇▇▇-▇▇▇-▇▇▇▇); and
(b) if to the Company or the Bank, shall be delivered or sent
by mail, telex or facsimile transmission to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
23
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇) and with a copy to ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ Procter LLP, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Bank and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
and the Bank contained in this Agreement shall also be deemed to be for the
benefit of the officers and employees of each Underwriter and the person or
persons, if any, who control such Underwriter within the meaning of Section 15
of the 1933 Act and (B) the indemnity agreement of each Underwriter contained in
Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors, officers and employees of the Company and the Bank and any person
controlling any of such entities within the meaning of Section 15 of the 1933
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 12, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
13. SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Company, the Bank and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Series D Preferred
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which The New
York Stock Exchange is open for trading and (b) "subsidiary" shall mean Dolphin
Capital Corporation.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
24
If the foregoing correctly sets forth the agreement among the Company,
the Bank and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CAPITAL CROSSING
PREFERRED CORPORATION
By:
-----------------------------------
Name:
Title:
CAPITAL CROSSING BANK
By:
-----------------------------------
Name:
Title:
25
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
-------------------------------
Authorized Representative
SCHEDULE 1
Underwriters Number of Shares of Firm Stock to be Purchased
------------ ----------------------------------------------
▇▇▇▇▇▇ Brothers Inc................................
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc..............................
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated..................
Total.......................................... 1,500,000
---------
