CNB, INC.
1,250,000 shares of Common Stock 1
UNDERWRITING AGREEMENT
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January ___, 1999
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
CNB, Inc., a Florida corporation (the "Company"), hereby confirms its
agreement (the "Agreement") with ▇▇▇▇, ▇▇▇▇ & Co., Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
(collectively, the "Underwriters"), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
in such amounts as are set forth in Schedule A hereto opposite the name of each
such Underwriter, of 1,250,000 shares (the "Initial Securities") of common
stock, par value $0.01 per share (the "Common Stock") of the Company. The
Company also proposes to issue and sell to the Underwriters, at the
Underwriters' option, up to an additional 187,500 shares of Common Stock (the
"Option Securities") as set forth herein, which shall be purchased by the
Underwriters, severally and not jointly, in proportion to the number of Initial
Securities set forth opposite each Underwriter's name in Schedule A hereto,
except that the respective purchase obligations of each Underwriter shall be
adjusted so that no Underwriter shall be obligated to purchase fractional Option
Securities. The term "Common Securities" as used herein, unless indicated
otherwise, shall mean the Initial Securities and the Option Securities.
The initial public offering price for the Common Securities, the
purchase price to be paid by the Underwriters for the Common Securities and the
commission per Common Security to be paid by the Company to the Underwriters
shall be agreed upon by the Company and the Underwriters, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Company and the Underwriters and shall specify
such
applicable information as is indicated in Exhibit A hereto. The offering of
the Common Securities will be governed by this Agreement as supplemented by the
Price Determination Agreement. From and after the date of the execution and
delivery of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
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1 Plus an option to acquire up to 187,500 additional shares of Common
Stock from the Company, to cover over-allotments.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-2 (File No.
333-68867) covering the registration of the Common Securities, under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and the
documents incorporated by reference therein pursuant to Item 12 of Form S-2
under the 1933 Act, at the time it becomes effective, is herein called the
"Registration Statement," and the prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-2 under the 1933
Act, included in the Registration Statement at the time it becomes effective is
herein called the "Prospectus," except that if any revised prospectus provided
to the Underwriters by the Company for use in connection with the offering of
the Common Securities differs from the prospectus included in the Registration
Statement at the time it becomes effective (whether or not such prospectus is
required to be filed pursuant to Rule 424(b)), the term "Prospectus" shall refer
to such revised prospectus from and after the time it is first furnished to the
Underwriters for such use.
The Underwriters may assemble and manage a selling group of
broker-dealers that are members of the National Association of Securities
Dealers, Inc. ("NASD") to participate in the solicitation of purchase orders for
the Common Securities under a master selected dealer agreement, the form of
which is set forth as Exhibit B to this Agreement.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to and agrees with the
Underwriters that:
(i) The Company meets the requirements for use of Form S-2
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
latest of the Closing Time (as defined in Section 2(b) hereof), the
Option Closing Date (as defined in Section 2(a) hereof), if applicable,
or the latest date on which prospectuses are required to be delivered
to purchasers of the Common Securities pursuant to Section 4(3) of the
1933 Act, (A) the Registration Statement and any amendments and
supplements thereto will comply in all material respects with the
requirements of the 1933 Act and the rules and
2
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"); (B) neither the Registration Statement nor any amendment
or supplement thereto will 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, in light of the circumstances
under which they were made, not misleading; and (C) neither the
Prospectus nor any amendment or supplement thereto will 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, except that
this representation and warranty does not apply to statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly for
use in the Registration Statement or the Prospectus. The statements
contained under the caption "Underwriting" in the Prospectus constitute
the only information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-2 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read together and
with the other information in the Prospectus, at the time the
Registration Statement becomes effective and at all times subsequent
thereto up to the latest of the Closing Time (as defined in Section
2(b) hereof), the Option Closing Date (as defined in Section 2(a)
hereof), if applicable, or the latest date on which prospectuses are
required to be delivered to purchasers of the Common Securities
pursuant to Section 4(3) of the 1933 Act, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading, in each case after excluding any statement that
does not constitute a part of the Registration Statement or the
Prospectus pursuant to Rule 412 of the 1933 Act Regulations.
(iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Company, who
are reporting upon the audited financial statements included or
incorporated by reference in the Registration Statement, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed by the Underwriters,
will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally, by the rights of creditors of
depository institutions whose accounts are insured by the Federal
Deposit Insurance
3
Corporation, or by general equitable principles.
(v) The consolidated financial statements, audited and
unaudited (including the notes thereto), included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and the Bank (as defined below) as of
the dates indicated and the consolidated results of operations and cash
flows of the Company and the Bank for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved except as otherwise stated therein. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial and statistical data included in the Prospectus are
accurate in all material respects and present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited and unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus. The Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of
the Company and the Bank, considered as one enterprise. All of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable,
and none of the outstanding shares of capital stock was issued in
violation of the preemptive rights of any stockholder of the Company.
(vii) The Company is duly registered under the Bank Holding
Company Act of 1956, as amended. The Company has all such power,
authority, authorization, approvals and orders as may be required to
enter into this Agreement, to carry out the provisions and conditions
hereof and to issue and sell the Common Securities.
(viii) CNB National Bank (the "Bank") is a national bank duly
organized, validly existing and in good standing under the laws of the
United States of America with corporate power and authority under such
laws to own, lease and operate its properties and conduct its business;
and the deposit accounts of the Bank are insured by either the Savings
Association Insurance Fund or the Bank Insurance Fund of the Federal
Deposit Insurance Corporation ("FDIC"), up to the maximum allowable
limits thereof. The Bank is duly qualified to transact
4
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and the Bank, considered as one
enterprise. All of the outstanding shares of capital stock of the Bank
have been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Company directly, free and clear of
any pledge, lien, security interest, charge, claim or encumbrance of
any kind, and none of the outstanding shares of capital stock was
issued in violation of the preemptive rights of any stockholder of the
Bank.
(ix) Except for the Bank, the Company does not own, directly
or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint
venture, limited liability company or other entity or association,
other than those acquired in the ordinary course of business of the
Bank.
(x) The Company had at the date indicated duly authorized and
outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization."
(xi) The Common Securities to be issued and sold by the
Company to the Underwriters have been duly authorized and, when issued,
delivered and paid for pursuant to this Agreement, will be validly
issued, fully paid and non-assessable and will conform to the
description thereof contained in the Prospectus and the Registration
Statement. The delivery of certificates for the Common Securities to be
issued and sold by the Company hereunder and payment therefor pursuant
to the terms of this Agreement will pass valid title to such Common
Securities to the Underwriters, free and clear of any lien, claim,
encumbrance or defect in title. The issuance of such Common Securities
is not subject to preemptive or other similar rights.
(xii) The issuance by the Company of the Common Securities,
the compliance by the Company with all of the provisions of this
Agreement, the execution, delivery and performance by the Company of
this Agreement, and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any material indenture, loan agreement, mortgage, deed of trust or
other material agreement or instrument to which the Company or the Bank
is a party or by which the Company or the Bank is bound or to which any
of the property or assets of the Company or the Bank is subject, nor
will such action result in any violation of the provisions of the
articles of incorporation, charter or bylaws of the Company or the Bank
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
5
Company or the Bank or any of their respective properties; and no
consent, approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other
governmental agency or body is required for the issue of the Common
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations, licenses, certificates, permits, registrations or
qualifications as have already been obtained, or as may be required
under the 1933 Act or the 1933 Act Regulations, 1934 Act or 1934 Act
Regulations, or state securities laws.
(xiii) The Company is not, and after giving effect to the
offering and sale of the Common Securities will not be, an "investment
company," or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xiv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or the Bank, other than in the ordinary course of business,
that is material to the Company and its subsidiaries, considered as one
enterprise, or (C) any dividend or distribution of any kind declared,
paid or made by the Company on its capital stock, except dividends and
distributions made by the Company consistent with its past practices.
Neither the Company nor the Bank has any material liability of any
nature, contingent or otherwise, except as set forth in the Prospectus.
(xv) Neither the Company nor the Bank is in violation of any
provision of its articles of incorporation, charter or bylaws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
it is a party or by which it may be bound or to which any of its
properties may be subject, except for such defaults that would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company
and the Bank, considered as one enterprise.
(xvi) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and the Bank, considered
6
as one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and the
Bank, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement; all pending legal or
governmental proceedings to which the Company or the Bank is a party
that are not described in the Prospectus, including ordinary routine
litigation incidental to its business, if decided in a manner adverse
to the Company or the Bank, would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and the Bank, considered as one
enterprise.
(xvii) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xviii) The Company and the Bank each has good and marketable
title to all properties and assets described in the Prospectus as owned
by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B)
are neither material in amount nor materially significant in relation
to the business of the Company and the Bank, considered as one
enterprise; all of the leases and subleases material to the business of
the Company and the Bank, considered as one enterprise, and under which
the Company or the Bank holds properties described in the Prospectus,
are in full force and effect, and neither the Company nor the Bank has
any notice of any material claim that has been asserted by anyone
adverse to the rights of the Company or the Bank under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of such corporation to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Each of the Company and the Bank owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, and neither the Company
nor the Bank has received any notice of any restriction upon, or any
notice of proceedings relating to revocation or modification of, any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xx) No labor problem with the employees of the Company or
with employees of the Bank exists or, to the best knowledge of the
Company, is imminent, that could materially adversely affect the
Company and the Bank, considered as one enterprise, and the Company is
not aware of any existing or imminent labor disturbance by the
employees of any of its or the Bank's principal suppliers, contractors
or customers that could reasonably be expected to
7
materially adversely affect the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company
and the Bank, considered as one enterprise.
(xxi) Except as disclosed in the Prospectus, there are no
persons with registration or other similar rights to have any
securities of the Company (i) registered pursuant to the Registration
Statement or (ii) otherwise registered by the Company under the 1933
Act.
(xxii) Except as disclosed in the Prospectus, the Company and
the Bank own or possess all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively "patent and proprietary rights") currently employed by
them in connection with the business now operated by them, except where
the failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and the Bank, considered as one
enterprise, and neither the Company nor the Bank has received any
notice nor is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, and which infringement or conflict (if the subject of any
unfavorable decision, rule or refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change
in the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and the Bank, considered as
one enterprise.
(xxiii) The Company and the Bank have filed all Federal, state
and local income, franchise, payroll, sales, property (real and
personal, tangible and intangible), and other tax returns required to
be filed and have made timely payments of all taxes due and payable in
respect of such returns and no material deficiency has been asserted
with respect thereto by any taxing authority.
(xxiv) The Company has filed with the NASD all documents,
listing applications and notices required by the NASD of companies that
have issued securities that are traded in the over-the-counter market
and quotations for which are reported by the National Market of The
Nasdaq Stock Market, Inc. (the "Nasdaq Stock Market").
(xxv) Neither the Company nor the Bank has taken or will take,
directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation, under the 1934 Act or
otherwise, of the price of the Common Securities.
(xxvi) Neither the Company nor the Bank is or has been (by
virtue of any
8
action, omission to act, contract to which it is a party or by which it
is bound, or any occurrence or state of facts whatsoever) in violation
of any applicable Federal, state, municipal, or local statutes, laws,
ordinances, rules, regulations and/or orders issued pursuant to
foreign, federal, state, municipal, or local statutes, laws,
ordinances, rules, or regulations (including those relating to banks or
bank holding companies or any aspect of banking, owning or controlling
banks or other financial institutions, environmental protection,
occupational safety and health, and equal employment practices)
heretofore or currently in effect, except such violation that has been
fully cured or satisfied without recourse or that is not reasonably
likely to have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of
the Company and the Bank, considered as one enterprise.
(xxvii) Neither the Company nor the Bank has any agreement or
understanding with any person or entity concerning the future
acquisition by the Company or the Bank of a controlling interest in any
entity that is required by the 1933 Act or the 1933 Act Regulation to
be disclosed by the Company that is not disclosed in the Prospectus;
neither the Company nor the Bank has any agreement or understanding
with any person or entity concerning the future acquisition of a
controlling interest in the Company or the Bank by any person or entity
that is required by the 1933 Act or the 1933 Act Regulations to be
disclosed by the Company that is not disclosed in the Prospectus.
(xxviii) Neither the Company nor the Bank has authorized,
conducted, or has knowledge of the generation, transportation, storage,
use, treatment, disposal or release of any hazardous substance,
hazardous waste, hazardous material, hazardous constituent, toxic
substance, pollutant, contaminant, petroleum product, natural gas,
liquefied gas or synthetic gas defined or regulated under any
Environmental Law on or from any real property owned, leased by or
otherwise occupied by the Company or the Bank; and there is no pending
or, to the knowledge of the Company or the Bank, threatened claim,
litigation or any administrative agency proceeding, nor has the Company
or the Bank received any written or oral notice from any governmental
entity or third party, that: (A) alleges a violation of any
Environmental Law by the Company or the Bank; (B) alleges the Company
or the Bank is a liable party under the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. ss. 9602 ET Seq.
or any state superfund law; or (C) alleges possible contamination of
the environment by the Company or the Bank. As used herein, the term
"Environmental Law" means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, order, judgment, decree, injunction
or agreement with any regulatory authority relating to (i) the
protection, preservation or restoration of the environment (including,
without limitation, air, water, vapor, surface water, groundwater,
drinking water supply, surface soil, subsurface soil, plant and animal
life or any other natural resource), and/or (ii) the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production,
9
release or disposal of any substance presently listed, defined,
designated or classified as hazardous, toxic, radioactive or dangerous,
or otherwise regulated, whether by type or by quantity, including any
material containing any such substance as a component.
(xxix) Neither the Company nor the Bank, nor, to the knowledge
of the Company or the Bank, any other director, officer, agent,
employee or other person associated with or acting on behalf of the
Company or the Bank has, directly or indirectly, used any corporate
funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; made any unlawful
payment to foreign or domestic government officials or employees or to
foreign or domestic political parties or campaigns from corporate
funds; violated any provision of the Foreign Corrupt Practices Act of
1977, as amended; or made any bribe, rebate, payoff, influence payment
kickback or other payment, unlawful under the laws of the United States
or any foreign jurisdiction.
(xxx) The Bank is in compliance in all material respects with
the applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transaction Reporting Act of 1970, as amended,
and the rules and regulations thereunder.
(xxxi) For the thirty-six month period immediately preceding
the date of this Agreement, the Company has filed with the Commission
all reports, proxy statements and other information required by
Sections 13 and 14 of the 1934 Act and the applicable 1934 Act
Regulations promulgated thereunder (the "SEC Filings"), and all such
SEC Filings (together with all exhibits and schedules thereto and
documents incorporated by reference therein) comply in all material
respects with the requirements of the 1934 Act and the applicable 1934
Act Regulations. None of the SEC Filings contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in
light of the circumstances in which they were made, not misleading,
except to the extent corrected by a document subsequently filed with
the Commission.
(xxxii) To the best knowledge of the Company, the hardware,
software and embedded microcontrollers in non-computer equipment
(collectively, the "Computer Systems") of the Company, the Bank and the
material third-party vendors of the Company and the Bank are Year 2000
Compliant or will be Year 2000 Compliant by December 31, 1999, except
where the failure to be Year 2000 Compliant would not have a material
adverse effect on the Company or the Bank, taken as a whole. To the
best knowledge of the Company, the Computer Systems of the Company and
the Bank have the ability to interface properly and will continue to
interface properly with internal and external applications and systems
of third parties with which the Company and the Bank exchange data
electronically whether or not they are Year 2000 Compliant, except
where the failure to so interface would not have a material adverse
effect on the Company
10
or the Bank, taken as a whole. The Company has taken affirmative steps
to assess, address and correct any and all potential problems and
liabilities relating to Year 2000 Compliance and its impact on the
business and financial condition of the Company and the Bank. As used
herein, the term "Year 2000 Compliant" means that the Computer Systems
(i) are capable or recognizing, processing, managing, representing,
interpreting and manipulating correctly date related data for dates
earlier and later than January 1, 2000, including calculating,
comparing, sorting, storing, tagging and sequencing, without resulting
in or causing logical or mathematical errors or inconsistencies in any
user-interface functionalities or otherwise, including data input and
retrieval, data storage, data fields, calculations, reports, processing
or any other input or output; (ii) have the ability to provide date
recognition for any data element without limitation (including
date-related data represented without a century designation,
date-related data whose year is represented by only two digits and date
fields assigned special values); (iii) have the ability to function
automatically into and beyond the year 2000 without human intervention
and without any change in operations associated with the advent of the
year 2000; (iv) have the ability to interpret data, dates and time
correctly into and beyond the year 2000; (v) have the ability not to
produce noncompliance in existing information, nor otherwise corrupt
such data into and beyond the year 2000; (vi) have the ability to
process correctly after January 1, 2000, data containing dates before
that date; and (vii) have the ability to recognize all "leap years,"
including February 29, 2000.
(xxxiii) The Company and the Bank each has complied with all
provisions of Section 517.075, Florida Statutes, relating to doing
business with the Government of Cuba and certain other persons and
entities
(b) Any certificate signed by any authorized officer of the Company or
the Bank and delivered to the Underwriters or their counsel pursuant to this
Agreement shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS, CLOSING.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, the number of Initial Securities as
are set forth opposite such Underwriter's name in Schedule A hereto at the
purchase price and on the terms set forth herein and in the Price Determination
Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters to purchase up to an additional
187,500 Common Securities in accordance with the terms set forth herein and in
the Price Determination Agreement. The option hereby granted will expire at 5:00
p.m. on the 30th day after the
11
date the Registration Statement is declared effective by the Commission (or at
5:00 p.m. on the next business day if such 30th day is not a business day) and
may be exercised, on one occasion only, solely for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriters to the
Company setting forth the number of Option Securities as to which the
Underwriters are exercising the option and the time, date and place of payment
and delivery for the Option Securities. The Option Securities shall be purchased
from the Company, severally and not jointly, by the Underwriters in proportion
to the number of Initial Securities set forth opposite each Underwriter's name
in Schedule A hereto, except that the respective purchase obligations of each
Underwriter shall be adjusted so that no Underwriter shall be obligated to
purchase fractional Option Securities. The time and date of delivery of the
Option Securities (the "Option Closing Date") shall be determined by the
Underwriters but shall not be later than five full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, nor earlier than the second business day after the date on which the
notice of the exercise of the option shall have been given.
(b) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the offices of Holland & Knight
LLP, Jacksonville, Florida, or at such other place as shall be agreed upon by
the Company and the Underwriters, at 9:30 a.m. on the
third full business day after the effective date of the Registration Statement,
or at such other time not earlier than three nor more than ten full business
days thereafter as the Underwriters and the Company shall determine (such date
and time of payment and delivery being herein called the "Closing Time");
provided, however, that physical delivery of such certificates shall be made at
the offices of The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price, and delivery of
certificates, for such Option Securities shall be made at the above-mentioned
office of Holland & Knight LLP, or at such other place as shall be agreed upon
by the Company and the Underwriters, on the Option Closing Date as specified in
the notice from the Underwriters to the Company. Payment for the Initial
Securities and the Option Securities, if any, shall be made to the Company by
wire transfer, against delivery to the Underwriters of the Common Securities to
be purchased by each.
(c) Certificates in definitive form for the Common Securities to be
purchased by the Underwriters hereunder, and in such denominations and
registered in such names as the Underwriters may request upon at least 48 hours
notice to the Company, shall be delivered by or on behalf of the Company to the
Underwriters for their accounts, against payment therefor on behalf of the
Underwriters as provided herein. The Company will make certificates for the
Common Securities available for checking and packaging at least 24 hours prior
to each of the Closing Time and the Option Closing Date, if applicable, at the
offices of The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ or at such other location in New York, New York specified by the
Underwriters in writing at least 48 hours prior to the Closing Time or
12
Option Closing Date, as applicable.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company
covenants with each Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and will notify the Underwriters immediately, and
confirm the notice in writing, (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request of the Commission to amend the Registration Statement or amend or
supplement the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Common
Securities for offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes. The Company will use
every reasonable effort to prevent the issuance of any such stop order or of any
order preventing or suspending such use and, if any such order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the
Registration Statement or, if the Company has elected to rely on Rule 430A of
the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the
Prospectus (including documents incorporated by reference into the Registration
Statement or the Prospectus) of which the Underwriters shall not have previously
been advised and have previously been furnished a copy, or to which the
Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriters as
many signed and conformed copies of the Registration Statement as originally
filed and of each amendment thereto, whether filed before or after the
Registration Statement becomes effective, copies of all exhibits and documents
filed therewith (including documents incorporated by reference into the
Prospectus pursuant to Item 12 of Form S-2 under the ▇▇▇▇ ▇▇▇) and signed copies
of all consents and certificates of experts as the Underwriters may reasonably
request.
(d) The Company will deliver or cause to be delivered to the
Underwriters, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriters may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will deliver
or cause to be delivered to the Underwriters, without charge, as soon as the
Registration Statement shall have become effective (or, if the Company has
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is
13
required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as supplemented or amended) as the Underwriters may reasonably
request.
(e) The Company will comply to the best of its ability with the 1933
Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations,
so as to permit the completion of the distribution of the Common Securities as
contemplated in this Agreement and in the Prospectus. If, at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Common Securities, any event shall occur or condition exist as a result
of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or counsel for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b) hereof, such amendment or supplement as may be necessary
to correct such untrue statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Common Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Underwriters may designate and to maintain such qualifications in effect for a
period of not less than one year from the effective date of the Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Common Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of
Rule 158 of the 1933 Act Regulations ("Rule 158") to its securityholders and the
Underwriters as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement of the Company and the Bank
(in form complying with the provisions of Rule 158) covering a period of at
least 12 months beginning after the effective date of the Registration Statement
but not later than the first day of the Company's fiscal quarter next following
such effective date.
(h) The Company and the Bank will use the net proceeds received by them
from the sale of the Common Securities in the manner specified in the Prospectus
under the caption "Use of Proceeds."
14
(i) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act
subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will
furnish to the Underwriters copies of all annual reports, quarterly reports and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K,
respectively, or such other similar forms as may be designated by the Commission
and such other documents, reports, proxy statements and information as shall be
furnished by the Company to its stockholders generally.
(k) The Company will file with the Nasdaq Stock Market all documents
and notices required by the Nasdaq Stock Market of companies that have issued
securities that are traded on the National Market, in the over-the-counter
market, and quotations for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay the legal fees and related filing fees of
counsel for the Underwriters in connection with the qualification of the Common
Securities under the applicable securities laws in accordance with Section 3(f)
hereof (the "Blue Sky Qualification") and the preparation of one or more "blue
sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering
of the Common Securities as contemplated by the Prospectus and a copy of such
Blue Sky Survey or surveys shall be delivered to each of the Company and the
Underwriters.
(m) If, at the time the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A, then
the Company will prepare and file or transmit for filing with the Commission in
accordance with Rule 430A and Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)"), copies of an amended Prospectus, or, if required by Rule 430A, a
post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of the
Common Securities, prepare and distribute to the Underwriters and counsel to the
Underwriters, bound copies of the documents used in connection with the issuance
of the Common Securities.
(o) The Company will not, prior to the Option Closing Date or thirty
(30) days after the date of this Agreement, whichever occurs first, incur any
material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party that is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K of the Commission, except as
contemplated by the Prospectus.
(p) During the period beginning from the date hereof and continuing and
15
including the date 180 days after the date of this Agreement, the Company will
not, without the prior written consent of the Underwriters, directly or
indirectly, offer for sale, sell, issue, contract to sell, or grant any option
to sell (including, without limitation, any short sale), pledge, establish an
open "put-equivalent position within the meaning of Rule 16a-1(h) under the 1934
Act, transfer, assign or otherwise dispose of any shares of Common Stock or
securities exchangeable for or convertible into, shares of Common Stock (except
for the issuance of Common Stock upon the exercise of stock options outstanding
on the date of this Agreement to the extent such options are disclosed in the
Prospectus), or publicly announce the intention to do any of the foregoing.
(q) The Company has obtained, for the benefit of the Company and the
Underwriters, from each of its directors, officers and other beneficial owners
of five percent or more of the Common Stock a written agreement that for a
period of 180 days from the date of this Agreement, such director, officer or
beneficial owner will not, without the prior written consent of the
Underwriters, directly or indirectly, offer for sale or sell, contract to sell,
or grant any option to sell (including, without limitation, any short sale),
pledge, establish an open "put- equivalent position within the meaning of Rule
16a-1(h) under the 1934 Act, transfer, assign or otherwise dispose of any shares
of Common Stock or securities exchangeable for or convertible into shares of
Common Stock, or any option, warrant or other right to acquire such shares, or
publicly announce the intention to do any of the foregoing.
Section 4. PAYMENT OF EXPENSES.
(a) The Company will pay and bear all costs and expenses incident to
the performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereof to the Underwriters, (b) the
preparation, printing and distribution of this Agreement, the Common Securities
and the Blue Sky Survey, (c) the issuance and delivery of the Common Securities
to the Underwriters, including any transfer taxes payable upon the sale of the
Common Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) the Blue Sky Qualification and the Nasdaq
listing fees, (f) fees and disbursements of counsel for the Underwriters in
connection with the Blue Sky Qualification and the Blue Sky Survey (such
counsel's fees shall not exceed $10,000, exclusive of out-of-pocket expenses of
such counsel), (g) filing fees in connection with the Blue Sky Qualification and
any filing fee for review of the offering with the NASD, and (h) all other costs
of the Company incident to the performance of the Company's obligations
hereunder. The Company shall pay the legal fees and expenses of the
Underwriters' counsel (such counsel's fees shall not exceed $70,000, exclusive
of out-of-pocket expenses of such counsel and legal fees relating to the Blue
Sky Qualification) and general out-of-pocket expenses of the Underwriters, which
shall not exceed $10,000 without the prior written consent of the Company.
16
If (i) the Closing Time does not occur on or before ▇▇▇▇▇ ▇▇, ▇▇▇▇,
(▇▇) the Company abandons or terminates the offering, or (iii) this Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or
9(a) hereof, the Company shall reimburse the Underwriters and counsel for the
Underwriters for all their reasonable fees, disbursements and out-of-pocket
expenses, as set forth in this Section 4.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Common Securities that each has
respectively agreed to purchase pursuant to this Agreement are subject to the
accuracy of the representations and warranties of the Company contained herein
or in certificates of the officers of the Company or the Bank delivered pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 4:00 P.M. on the date of this Agreement or, with the Underwriters's
consent, at a later time and date not later, however, than 4:00 P.M. on the
first business day following the date hereof, or at such later time or on such
later date as Underwriters may agree to in writing; at the Closing Time, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to the Underwriters' knowledge or the
knowledge of the Company, shall be 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 counsel for the Underwriters. If the
Company has elected to rely upon Rule 430A, a prospectus containing the Rule
430A information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements of Rule
430A).
(b) At the Closing Time, the Underwriters shall have
received:
(i) The favorable opinion, dated as of Closing Time, of
McGuire, Woods, Battle & ▇▇▇▇▇▇ LLP, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit C.
(ii) The favorable opinion, dated as of Closing Time, of
Holland & Knight LLP, counsel for the Underwriters, in form and
substance reasonably satisfactory to the Underwriters.
In giving such opinions, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States, upon opinions of other counsel, who shall be counsel satisfactory to
counsel for the Underwriters in which case the opinion shall state that counsel
believes that the Underwriters and Underwriter's counsel are entitled to so
rely. Such counsel may also
17
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
the Bank and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date, (i) the
Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, the Company shall have complied in all material respects with Rule
430A (if it shall have elected to rely thereon) and neither the Registration
Statement nor the Prospectus, as they may then be amended or supplemented, shall
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, (ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and the Bank, considered as one
enterprise, whether or not arising in the ordinary course of business, (iii) no
action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Company, threatened against the Company or the Bank, that would
be required to be set forth in the Prospectus other than as set forth therein
and no proceedings shall be pending or, to the knowledge of the Company,
threatened against the Company or the Bank before or by any federal, state or
other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding could reasonably be expected to materially adversely
affect the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and the Bank, considered as one
enterprise, other than as set forth in the Prospectus, (iv) the Company shall
have complied, in all material respects, with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time or Option Closing Date, as applicable, (v) the other representations and
warranties of the Company set forth in Section l(a) hereof shall be accurate in
all material respects as though expressly made at and as of the Closing Time or
Option Closing Date, as applicable, and (vi) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or, to the knowledge of
the Company, threatened by the Commission. At the Closing Time, the Underwriters
shall have received a certificate of the Chairman and of the Chief Financial
Officer or Controller of the Company, dated as of the Closing Time, to such
effect.
(d) At the time that this Agreement is executed by the Company, the
Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated such
date, in form and substance satisfactory to the Underwriters, confirming that
they are independent certified public accountants with respect to the Company
within the meaning of the 1933 Act and the published 1933 Act Regulations, and
stating in effect that, with respect to the Company:
18
(i) in their opinion, the consolidated financial statements as
of December 31, 1997 and for the year then ended and the related
financial statement schedules included or incorporated by reference in
the Registration Statement and the Prospectus and covered by their
opinion included therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
published 1933 Act Regulations; and
(ii) on the basis of procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, including a reading
of the latest available unaudited interim consolidated financial
statements for the Company, a reading of the minutes of all meetings of
the Board of Directors of the Company and the Bank and of the Audit and
Executive Committees of the Board of Directors since January 1, 1998,
inquiries of certain officials of the Company and its subsidiaries
responsible for financial and accounting matters, and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited interim consolidated financial
statements at and for the nine months ended September
30, 1998 and the condensed financial information
presented under "Summary of Recent Developments"
included in the Prospectus (1) are not presented in
conformity with generally accepted accounting
principles applied on a basis consistent with that of
the audited financial statements included in the
Prospectus, and (2) do not comply as to form in all
material respects with the applicable accounting
requirements of the 1933 Act and the published 1933
Act Regulations;
(B) at a specified date not more than three days
prior to the date of this Agreement, there was any
increase in the capital stock, long-term debt,
Federal Home Loan Bank advances, Federal Reserve Bank
advances or real estate owned or any decrease in
total assets, deposits, loan loss allowance or
stockholders' equity of the Company and the Bank, in
each case as compared with amounts shown in the
unaudited consolidated statement of financial
condition at September 30, 1998 included in the
Registration Statement, except in all cases for
increases or decreases that the Registration
Statement discloses have occurred or may occur; or
(C) for the period from October 1, 1998 to a
specified date not more than three days prior to the
date of this Agreement, there was any decrease in net
interest income, non-interest income or net income or
net income per common and common equivalent share, or
any increase in the provision for loan losses or
non-interest
19
expense in each case as compared with a
period of comparable length in the preceding year,
except in all cases for increases or decreases that
the Registration Statement discloses have occurred or
may occur; and
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement
(including the Summary Consolidated Financial Data, Selected
Consolidated Financial Data and Summary of Recent Developments), having
compared such items with, and having found such items to be in
agreement with, the financial statements of the Company or general
accounting records of the Company, as applicable, which are subject to
the Company's internal accounting controls or other data and schedules
prepared by the Company from such records; and
(iv) on the basis of a review of schedules provided to them by
the Company, nothing came to their attention that caused them to
believe that the information, set forth in the Prospectus under the
heading "Capitalization" had not been correctly calculated on the basis
described therein.
(e) At the time that this Agreement is executed by the Company, the
Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Company a letter dated
such date, in form and substance satisfactory to the Underwriters, confirming
that they are independent certified public accountants with respect to the
Company within the meaning of the 1933 Act and the published 1933 Act
Regulations, and stating in effect that, with respect to the Company, in their
opinion, the consolidated financial statements as of December 31, 1996 and for
the two years then ended and the related financial statement schedules included
or incorporated by reference in the Registration Statement and the Prospectus
and covered by their opinion included therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published 1933 Act Regulations.
(f) At the Closing Time, the Underwriters shall have received from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, in form and substance satisfactory to the
Underwriters and dated as of the Closing Time, to the effect that it reaffirms
the statements made in the letter furnished pursuant to Section 5(d) hereof,
except that the inquiries specified in Section 5(d) hereof shall be made based
upon the latest available unaudited interim consolidated financial statements
and the specified date referred to shall be a date not more than three days
prior to the Closing Time.
(g) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may request
for the purpose of enabling them to pass upon the issuance and sale of the
Common Securities as contemplated in this Agreement and the matters referred to
in Section
20
5(c) hereof and in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company, the performance of any
of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Common Securities as contemplated in this Agreement shall be satisfactory in
form and substance to the Underwriters and to counsel for the Underwriters.
(h) Between the date of this Agreement and the Closing Time, (i) no
downgrading shall have occurred in the rating accorded any securities of the
Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organizations" as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(i) The Company shall have paid, or made arrangements satisfactory to
the Underwriters for the payment of, all such expenses as may be required by
Section 4 hereof.
(j) In the event the Underwriters exercise their option provided in
Section 2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriters to purchase the Option Securities that they have
agreed to purchase shall be subject to the accuracy of the representations and
warranties of the Company contained herein and of the statements in any
certificates furnished by the Company hereunder as of such Option Closing Date
(as if made on such date), to the performance by the Company of its obligations
hereunder and to the receipt by the Underwriters on the Option Closing Date of:
(1) A certificate, dated the Option Closing
Date, of the Chairman and of the Chief Financial
Officer or Controller of the Company confirming that
the certificate delivered on the Closing Time
pursuant to Section 5(c) hereof remains true as of
the Option Closing Date;
(2) The favorable opinion of McGuire, Woods,
Battle & ▇▇▇▇▇▇ LLP, counsel for the Company,
addressed to the Underwriters and dated the Option
Closing Date, in form satisfactory to Holland &
Knight LLP, counsel for the Underwriters, relating to
the Option Securities and otherwise to the same
effect as the opinion required by Section 5(b)
hereof;
(3) The favorable opinion of Holland &
Knight LLP, dated the Option Closing Date, relating
to the Option Securities and otherwise to the same
effect as the opinion required by Section
21
5(b) hereof; and
(4) A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
addressed to the Underwriters and dated the Option
Closing Date, in form and substance satisfactory to
the Underwriters and substantially the same in form
and substance as the letter furnished to the
Underwriters pursuant to Section
5(d) hereof.
(k) The Common Securities shall have been qualified or registered for
sale, or subject to an available exemption from such qualification or
registration, under the Blue Sky or securities laws of such jurisdictions as
shall have been reasonably specified by the Underwriters and the offering
contemplated by this Agreement shall have been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriters on notice to the Company at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7, 10, 12
and 13 shall remain in effect.
Section 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters, officers, directors, employees, agents and counsel for the
Underwriters, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to, amounts incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any preliminary prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any preliminary prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Common Securities under the "blue sky" or securities
laws thereof or filed with the Commission or any securities exchange; unless
such statement or omission or alleged statement or omission was made in reliance
upon and in conformity with written information concerning the Underwriters, the
Agreement or the compensation of the Underwriters furnished to the Company by
the
22
Underwriters expressly for inclusion in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or in any application, as the case may be, or (ii) any breach of any
representation, warranty, covenant or agreement of the Company contained in the
Agreement. For purposes of this section, the term "expense" shall include, but
not be limited to, reasonable counsel fees and costs, court costs, out-of-pocket
costs and compensation for the time spent by such Underwriter's directors,
officers, employees and counsel according to his or her normal hourly billing
rates. The indemnification provisions shall also extend to all affiliates of the
Underwriters, their respective directors, officers, employees, legal counsel,
agents and controlling persons within the meaning of the federal securities
laws. The foregoing agreement to indemnify shall be in addition to any liability
the Company may otherwise have to the Underwriters or the persons entitled to
the benefit of these indemnification provisions. Any provision to the contrary
contained herein notwithstanding, the foregoing indemnification with respect to
any preliminary prospectus shall not inure to the benefit of the Underwriter
from whom the person asserting such losses, claims, damages or liabilities
purchased shares (or any person controlling such Underwriter) if a copy of the
Prospectus (as then amended or supplemented, if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if such is required by law, at or prior to the
written confirmation of the sale of such shares to such person and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability, provided that the Company
delivered the Prospectus (as so amended or supplemented) on a timely basis to
permit such delivery.
(b) Each Underwriter severally, but not jointly, agrees to indemnify
and hold harmless the Company, its directors, officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) above, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or any
application in reliance upon and in conformity with written information
concerning the Underwriters, the Agreement or the compensation of the
Underwriters furnished to the Company by the Underwriters expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or in any
application.
(c) An indemnified party shall give prompt notice to the indemnifying
party if any action, suit, proceeding or investigation is commenced in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve the indemnifying party from its obligations
to indemnify hereunder, except to the extent that the indemnifying party has
been prejudiced in any material respect by such failure. If it so elects within
a reasonable time after receipt of such notice, an indemnifying party may assume
the defense of such action, including the employment of counsel satisfactory to
the indemnified parties and payment of all expenses of the indemnified party in
connection with such action. Such indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have promptly employed counsel reasonably
satisfactory to such indemnified party or parties or such indemnified party or
parties shall have reasonably concluded that there may be one or more legal
defenses available to it or them or to
23
other indemnified parties that are different from or additional to those
available to one or more of the indemnifying parties, in any of which events
such fees and expenses shall be borne by the indemnifying party and the
indemnifying party shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties. The Company shall be liable for
any settlement of any claim against any Underwriter (or its directors, officers,
employees, affiliates or controlling persons), made with the Company's written
consent, which consent shall not be unreasonably withheld. The Company shall
not, without the written consent of the Underwriters, settle or compromise any
claim against it based upon circumstances giving rise to an indemnification
claim against the Company hereunder unless such settlement or compromise
provides that the Underwriters and the other indemnified parties shall be
unconditionally and irrevocably released from all liability in respect to such
claim.
(d) In order to provide for just and equitable contribution, if a claim
for indemnification pursuant to these indemnification provisions is made but it
is found in a final judgment by a court that such indemnification may not be
enforced in such case, even though the express provisions hereof provide for
indemnification in such case, then the Company, on the one hand, and the
Underwriters, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, from the underwriting, and also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements, acts or omissions which resulted in such loss, liability, claim,
damage and expense, and any other relevant equitable considerations shall also
be considered. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not be found
liable for such fraudulent misrepresentation or omission. Notwithstanding the
foregoing, the Underwriters in the aggregate shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
commission paid by the Company to the Underwriters in the aggregate with respect
to the Common Securities purchased by the Underwriters.
(e) The indemnity and contribution agreements contained herein are in
addition to any liability which the Company may otherwise have to the
Underwriters.
(f) Neither termination nor completion of the engagement of the
Underwriters nor any investigation made by or on behalf of the Underwriters
shall affect the indemnification obligations of the Company or the Underwriters
hereunder, which shall remain and continue to be operative and in full force and
effect.
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Company or its officers set forth in or made pursuant to this
Agreement will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company or the Underwriters or any
controlling person and will survive delivery of and payment for the Common
Securities.
Section 8. OFFERING BY THE UNDERWRITERS. The Company is advised by the
Underwriters that the Underwriters propose to make a public offering of the
Common Securities, on the terms and conditions set forth in the Registration
Statement, from
24
time to time as and when the Underwriters deem advisable after the Registration
Statement becomes effective.
Section 9. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and the Bank, considered as one enterprise, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters's reasonable judgment, impracticable to
market the Common Securities or enforce contracts for the sale of the Common
Securities, or (iii) if trading in any securities of the Company has been
suspended by the Commission or the NASD, or if trading generally on the New York
Stock Exchange or in the over-the-counter market has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or by order of the Commission,
the NASD or any other governmental authority with appropriate jurisdiction over
such matters, or (iv) if a banking moratorium has been declared by either
federal or Florida authorities, or (v) if there shall have been such material
and substantial change in the market for securities in general or in political,
financial or economic conditions as in the Underwriters's reasonable judgment
makes it inadvisable to proceed with the offering, sale and delivery of the
Common Securities on the terms contemplated by the Prospectus, or (vi) if the
Underwriters reasonably determine (which determination shall be in good faith)
that there has not been satisfactory disclosure of all relevant financial
information relating to the Company in the Company's disclosure documents and
that the sale of the Common Securities is inadvisable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6, 7, 10, 12 and 13 shall remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one of the
Underwriters shall fail at the Closing Time to purchase the Initial Securities
that it is obligated to purchase pursuant to this Agreement (the "Defaulted
Securities"), the non-defaulting Underwriter shall have the right, within 24
hours thereafter, to make arrangements to purchase all, but not less than all,
of the Defaulted Securities upon the terms set forth in this Agreement; if,
however, the non-defaulting Underwriter has not completed such arrangements
within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not exceed 10%
of the aggregate amount of Initial Securities, the non-defaulting Underwriter
shall be
25
obligated to purchase the full amount thereof; or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of the
aggregate amount of Initial Securities, this Agreement shall terminate without
liability on the part of the non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect to its default.
In the event of any such default that does not result in a
termination of this Agreement, either the non-defaulting Underwriter or the
Company shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
Section 11. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices shall be addressed as follows:
If to the Underwriters:
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
and
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President
with a copy to:
Holland & Knight LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ III, Esq.
If to the Company:
26
CNB, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇. ▇▇▇▇▇▇▇, Chairman and Chief
Executive Officer
with a copy to:
McGuire, Woods, Battle & ▇▇▇▇▇▇, LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Halcyon ▇. ▇▇▇▇▇▇▇, Esq.
Section 12. PARTIES. This Agreement is made solely for the benefit of
the Underwriters, and the officers, directors, employees, agents and counsel of
the Underwriters, the Company and, to the extent expressed, any person
controlling the Company or the Underwriters, and the directors of the Company,
its officers who have signed the Registration Statement, and their respective
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the Underwriters of the Common Securities.
Section 13. ARBITRATION. Any claims, controversies, demands, disputes
or differences between or among the parties hereto or any persons bound hereby
arising out of, or by virtue of, or in connection with, or otherwise relating to
this Agreement shall be submitted to and settled by arbitration conducted in
Jacksonville, Florida before one or three arbitrators, each of whom shall be
knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 14. GOVERNING LAW AND TIME. This Agreement shall be
governed by the laws of the State of Florida. Specified times of the day refer
to New York City time.
Section 15. SEVERABILITY. In the event that any provision or any
portion of any provision of this Agreement shall be held invalid, illegal or
unenforceable under applicable, law the remainder of this Agreement shall remain
valid and enforceable.
27
Section 16. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
CNB, INC.
By:
Name:
Title:
Confirmed and accepted as of the date first above written:
▇▇▇▇, ▇▇▇▇ & CO., INC.
By:
Name:
Title:
▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO.
By:
Name:
Title:
28
SCHEDULE A
UNDERWRITER SHARES
----------- ------
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
Total 1,250,000
EXHIBIT A
CNB, INC.
(a Florida corporation)
1,250,000 Shares of Common Stock
PRICE DETERMINATION AGREEMENT
-----------------------------
__________, 199__
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof
(the "Underwriting Agreement"), among CNB, Inc. (the "Company") and the
Underwriters named therein (the "Underwriters"). The Underwriting Agreement
provides for the purchase by the Underwriters from the Company, subject to the
terms and conditions set forth therein, of 1,250,000 shares of the common stock,
par value $0.01 per share (the "Common Stock"), subject to a 187,500 share
increase (to cover over-allotments, if any). This Agreement is the Price
Determination Agreement referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with
the Underwriters as follows:
1. The public offering price per share of Common Stock shall be
$__________.
2. The purchase price per share of Common Stock to be paid by the
Underwriters shall be $_______.
3.3. The commission per share of Common Stock to be paid by the Company
to the Underwriters for their commitments hereunder shall be $_____.
The Company represents and warrants to the Underwriters that the
representations and warranties of the Company set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of Florida.
If the foregoing is in accordance with your understanding of the
agreement between the Underwriters and the Company, please sign and return to
the Company a counterpart hereof, whereupon this instrument, along with all
counterparts and together with the Underwriting Agreement, shall be a binding
agreement between the Underwriters and the Company in accordance with its terms
and the terms of the Underwriting Agreement.
Very truly yours,
CNB, INC.
By:
Name:
Title:
Confirmed and accepted as of the date first above written:
▇▇▇▇, ▇▇▇▇ & CO., INC. ▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO.
By: By:
Name: Name:
Title: Title:
2
EXHIBIT B
Master Selected Dealer Agreement
Gentlemen:
(1) GENERAL. We understand that ▇▇▇▇, ▇▇▇▇ & Co., Inc. is entering into
this Agreement with us and other firms who may be offered the right to purchase
as principal a portion of securities being distributed to the public. The terms
and conditions of this Agreement shall be applicable to any public offering of
securities ("Securities") pursuant to a registration statement filed under the
Securities Act of 1933 (the 'Securities Act") wherein ▇▇▇▇, ▇▇▇▇ & Co., Inc.
(acting for its own account or for the account of any underwriting or similar
group or syndicate) is responsible for managing or otherwise implementing the
sale of the Securities to selected dealers ("Selected Dealers") and has informed
us that such terms and conditions shall be applicable. Any such offering of
Securities to us as a Selected Dealer is hereinafter called an "Offering." In
the case of any Offering in which you are acting for the account of any
underwriting or similar group or syndicate ("Underwriters"), the terms and
conditions of this Agreement shall be for the benefit of, and binding upon, such
Underwriters, including, in the case of any Offering in which you are acting
with others as representatives of Underwriters, such other representatives. The
term "preliminary prospectus" means any preliminary prospectus relating to an
Offering of Securities or any preliminary prospectus supplement together with a
prospectus relating to an Offering of Securities; the term "Prospectus" means
the prospectus, together with the final prospectus supplement, if any, relating
to an Offering of Securities, filed pursuant to Rule 424(b) or Rule 424(c) under
the Securities Act or any successor or similar rules.
(2) CONDITIONS OF OFFERING ACCEPTANCE AND PURCHASE. Any Offering will
be subject to delivery of the Securities and their acceptance by you and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. You will
advise us by telegram, telex, facsimile, e-mail, or other form of written
communication ("Written Communication") of the particular method and
supplementary terms and conditions (including, without limitation, the
information as to prices and offering date referred to in Section 3(b)) of any
Offering in which we are invited to participate. To the extent such
supplementary terms and conditions are inconsistent with any provision herein,
such terms and conditions shall supersede any such provision. Unless otherwise
indicated in any such Written Communication, acceptances and other
communications by us with respect to any Offering should be sent to ▇▇▇▇, ▇▇▇▇ &
Co., Inc. You reserve the right to reject any acceptance in whole or in part.
Payment for Securities purchased by us is to be made at such office as you may
designate, at the public offering price, or, if you shall so advise us, at such
price less the concession to dealers or at the price set forth or indicated in a
Written Communication, on such date as you shall determine, on one day's prior
notice to us, by wire transfer to a ▇▇▇▇, ▇▇▇▇ & Co., Inc. account, against
delivery of certificates or other forms evidencing such Securities. If payment
is made
for Securities purchased by us at the public offering price, the
concession to which we shall be entitled will be paid to us upon termination of
the provisions of Section 3(b) with respect to such Securities.
Unless we promptly give you written instructions otherwise, if
transactions in the Securities may be settled through the facilities of The
Depository Trust Company, delivery of Securities purchased by us will be made
through such facilities if we are a member, or if we are not a member,
settlement may be made through our ordinary correspondent who is a member.
(3) REPRESENTATIONS, WARRANTIES, AND AGREEMENTS.
(A) PROSPECTUSES. You shall provide us with such number of
copies of each preliminary, prospectus, the Prospectus and any supplement
thereto relating to each Offering as we may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934
(Exchange Act) and the applicable Rules and regulations of the Securities and
Exchange Commission thereunder. We represent that we are familiar with Rule
15c2-8 under the Exchange Act relating to the distribution of preliminary and
final prospectuses and agree that we will comply therewith. We agree to keep an
accurate record of our distribution (including dates, number of copies, and
persons to whom sent) of copies of the Prospectus or any preliminary prospectus
(or any amendment or supplement to any thereof), and promptly upon request by
you, to bring all subsequent changes to the attention of anyone to whom such
material shall have been furnished. We agree to furnish to persons who receive a
confirmation of sale a copy of the Prospectus filed pursuant to Rule 424(b) or
Rule 424(c) under the Securities Act. We agree that in purchasing Securities in
an Offering we will rely upon no statements whatsoever, written or oral, other
than the statements in the Prospectus delivered to us by you. We will not be
authorized by the issuer or other seller of Securities offered pursuant to a
Prospectus or by any Underwriters to give any information or to make any
representation not contained in the Prospectus in connection with the sale of
such Securities.
(B) OFFER AND SALE TO THE PUBLIC. With respect to any Offering
of Securities, you will inform us by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to dealers, and
the time when we may commence selling Securities to the public. After such
public offering has commenced, you may change the public offering price, the
selling concession, and the reallowance to dealers. With respect to each
Offering of Securities, until the provisions of this Section 3(b) shall be
terminated pursuant to Section 4, we agree to offer Securities to the public
only at the public offering price, except that if a reallowance is in effect, a
reallowance from the public offering price not in excess of such reallowance may
be allowed as consideration for services in distribution to dealers who are
actually engaged in the investment banking or securities business, who execute
the written agreement prescribed by Rule 2740 of the Rules of Conduct of the
National Association of Securities Dealers, Inc. (the "NASD") and who are either
members in good standing of
the NASD or foreign brokers or dealers not eligible for membership in the NASD
who represent to us that they will promptly reoffer such Securities at the
public offering price and will abide by the conditions with respect to foreign
brokers and dealers set forth in Section 3(e).
(C) STABILIZATION AND OVERALLOTMENT. You may, with respect to
any Offering, be authorized to over-allot in arranging sales to Selected
Dealers, to purchase and sell Securities, any other securities of the issuer of
the Securities of the same class and series and any other securities of such
issuer that you may designate for long or short account, and to stabilize or
maintain the market price of the Securities. We agree to advise you from time to
time upon request, prior to the termination of the provisions of Section 3(b)
with respect to any Offering, of the amount of Securities purchased by us
hereunder remaining unsold and we will, upon your request, sell to you, for the
accounts of the Underwriters, such amount of Securities as you may designate, at
the public offering price thereof less an amount to be determined by you not in
excess of the concession to dealers. In the event that prior to the later of (i)
the termination of the provisions of Section 3(b) with respect to any Offering,
or (ii) the covering by you of any short position created by you in connection
with such Offering for your account or the account of one or more Underwriters,
you purchase or contract to purchase for the account of any of the Underwriters,
in the open market or otherwise, any securities delivered to us, you reserve the
right to withhold the above-mentioned concession to dealers on such Securities
if sold to us at the public offering price, or if such concession has been
allowed to us through our purchase at a net price, we agree to repay such
concession upon your demand, plus in each case any taxes on redelivery,
commissions, accrued interest, and dividends paid in connection with such
purchase or contract to purchase.
(D) OPEN MARKET TRANSACTIONS. We agree to abide by Regulation
M under the Exchange Act and we agree not to bid for, purchase, attempt to
purchase, or sell, directly or indirectly, any Securities, any other Reference
Securities (as defined in Regulation M) of the issuer, or any other securities
of such issuer as you may designate, except as brokers pursuant to unsolicited
orders and as otherwise provided in this Agreement. If the Securities are common
stock or securities convertible into common stock, we agree not to effect, or
attempt to induce others to effect, directly or indirectly, any transactions in
or relating to any stock of such issuer, except to the extent permitted by Rule
101 of Regulation M under the Exchange Act.
(E) NASD. We represent that we are actually engaged in the
investment banking or securities business and we are either a member in good
standing of the NASD, or, if not such a member, a foreign dealer not eligible
for membership. If we are such a member we agree that in making sales of the
Securities we will comply with all applicable Rules of the NASD, including,
without limitations the NASD's Interpretation with Respect to Free-Riding and
Withholding and Rule 2740 of the Conduct Rules. If we are such a foreign dealer,
we agree not to offer or sell any Securities in the United States of America
except through you and in making sales of Securities outside the United States
of America we agree to comply as though we were
2
a member with such Interpretation and Rule 2730, 2740 and 2750 of the Conduct
Rules of the NASD and to comply with Rule 2420 of the Conduct Rules of the NASD
as it applies to a nonmember broker or dealer in a foreign country. We represent
that we shall comply with the restrictions set forth in Rule 2720(l) of the NASD
Conduct Rules with respect to discretionary accounts.
(F) RELATIONSHIP AMONG UNDERWRITERS AND SELECTED DEALERS. You
may buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, with your consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the public
offering price less all or any part of the concession. We are not authorized to
act as agent for you or any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Nothing contained
herein or in any Written Communication from you shall constitute the Selected
Dealers partners with you or any Underwriter or with one another. Neither you
nor any Underwriter shall be under any obligation to us except for obligations
assumed hereby or in any Written Communication from you in connection with any
Offering. In connection with any Offering, we agree to pay our proportionate
share of any claim, demand, or liability asserted against us, and the other
Selected Dealers or any of them, or against you or the Underwriters, if any,
based on any claim that such Selected Dealers or any of them constitute an
association, unincorporated business, or other separate entity, including in
each case our proportionate share of any expense incurred in defending against
any such claim, demand, or liability.
(G) BLUE SKY LAWS. Upon application to you, you will inform us
as to the jurisdictions in which you believe the Securities have been qualified
for sale or are exempt under the respective securities or "blue sky" laws of
such jurisdictions. We understand and agree that compliance with the securities
or "blue sky" laws in each jurisdiction in which we shall offer or sell any of
the Securities shall be our sole responsibility and that you assume no
responsibility or obligations as to the eligibility of the Securities for sale
or our right to sell the Securities in any jurisdiction.
(H) COMPLIANCE WITH LAW. We agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities), we will comply with the applicable
provisions of the Securities Act and the Exchange Act, the applicable Rules and
regulations of the Securities and Exchange Commission thereunder, the applicable
Rules and regulations of the NASD, and the applicable Rules and regulations of
any securities exchange having jurisdiction over the Offering. You shall have
full authority to take such action as you may deem advisable in respect of all
matters pertaining to any Offering. Neither you nor any Underwriter shall be
under any liability to us, except for lack of good faith and for obligations
expressly assumed by you in this Agreement; PROVIDED, HOWEVER, that nothing in
this sentence shall be deemed to relieve you from any liability imposed by the
Securities Act.
(4) TERMINATION SUPPLEMENTS AND AMENDMENTS. This Agreement may be
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terminated by either party hereto upon five business days' written notice to the
other party; provided that with respect to any Offering for which a Written
Communication was sent and accepted prior to such notice, this Agreement as it
applies to such Offering shall remain in full force and effect and shall
terminate with respect to such Offering in accordance with the last sentence of
this Section. This Agreement may be supplemented or amended by you by written
notice thereof to us, and any such supplement or amendment to this Agreement
shall be effective with respect to any Offering to which this Agreement applies
after the date of such supplement or amendment. Each reference to "this
Agreement" herein shall, as appropriate, be to this Agreement as so amended and
supplemented. The terms and conditions set forth in Sections 3(b) and (d) with
regard to any Offering will terminate at the close of business on the thirtieth
day after the date of the initial public offering of the Securities to which
such Offering relates, but such terms and conditions, upon notice to us, may be
terminated by you at any time.
(5) SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified or
indicated in Section 1, and the respective successors and assigns of each of
them.
(6) GOVERNING LAW. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from you to us in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York.
By signing this Agreement we confirm that our subscription to, or our
acceptance of any reservation of any Securities pursuant to an Offering shall
constitute (i) acceptance of and agreement to the terms and conditions of this
Agreement (as supplemented and amended pursuant to Section 4) together with and
subject to any supplementary terms and conditions contained in any Written
Communication from you in connection with such Offering, all of which shall
constitute a binding agreement between us and you, individually, or as
representative of any Underwriters, (ii) in confirmation that our
representations and warranties set forth in Section 3 are true and correct at
that time and (iii) confirmation that our agreements set forth in Sections 2 and
3 have been and will be fully performed by us to the extent and at the times
required thereby.
Very truly yours,
(Name of Firm)
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(Authorized Signature)
(Title)
Confirmed, as of the date first above written:
▇▇▇▇, ▇▇▇▇ & CO., INC.
By:
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (tel)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Execution Date:
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EXHIBIT C
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The opinion of counsel to the Company to be delivered pursuant to Section
5(b)(i) of the Underwriting Agreement shall be substantially to the effect that:
1. The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida with requisite corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement and is registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended. Each of the
Company's subsidiaries is duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of incorporation, with requisite
corporate power and authority to own, lease and operate its respective
properties and conduct its business as described in the Registration Statement,
except where the failure to be in good standing would not have a material
adverse effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its subsidiaries,
considered as one enterprise. The Bank is a national banking association duly
organized, validly existing and in good standing under the federal laws of the
United States of America.
2. The Company and the Bank are duly qualified to transact business as foreign
corporations under the corporation laws of each jurisdiction in which the
Company or the Bank, as the case may be, owns or leases property of a nature,
has an office, or transacts business of a type, that would make such
qualification necessary, except where the failure to so qualify would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
3. The deposit accounts of the Bank are insured by either the Savings
Association Insurance Fund or the Bank Insurance Fund of the FDIC up to the
maximum amount allowable by law and, to such counsel's knowledge, no proceedings
for the termination or revocation of such membership or insurance are pending or
threatened.
4. All of the issued and outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued and are
fully paid and non-assessable and, to such counsel's knowledge, are owned by the
Company or the Bank, as the case may be, free and clear of any security
interests, liens, pledges, claims or other encumbrances, except where the
failure to own such shares free and clear of any security interests, liens,
pledges, claims or other encumbrances would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and the Bank, considered as one enterprise.
5. The authorized and outstanding capital stock of the Company is as set forth
in the Prospectus under the heading "Description of Capital Stock." The issued
and outstanding shares of capital stock of the Company immediately prior to the
issuance and sale of the Common Securities to be sold by the Company under the
Underwriting
Agreement have been duly authorized and validly issued, are fully paid and
non-assessable. There are no preemptive, preferential or, except as described in
the Prospectus and to our knowledge, other rights to subscribe for or purchase
any shares of capital stock of the Company and, to our knowledge, no shares of
capital stock of the Company have been issued in violation of such rights.
6. The Company has full corporate power and authority to execute, deliver and
perform the Underwriting Agreement and to issue, sell and deliver the Common
Securities to be sold by it to the Underwriters as provided therein; the
Underwriting Agreement has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid, and binding obligation of the Company
and is enforceable against the Company in accordance with its terms, except as
enforceability of the Underwriting Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, or the rights of creditors of depository institutions whose
accounts are insured by the Federal Deposit Insurance Corporation, and by
equitable principles limiting the right to specific performance or other
equitable relief and except as the obligations of the Company under the
indemnification and contribution provisions of Section 6 of the Underwriting
Agreement may be limited by applicable law or unenforceable as against public
policy.
7. The certificates for the Common Securities to be delivered under the
Underwriting Agreement are in due and proper form and conform to the
requirements of applicable law; and when duly countersigned by the Company's
transfer agent and delivered to the Underwriters or upon the order of the
Underwriters against payment of the agreed consideration therefor in accordance
with the provisions of the Underwriting Agreement, the Common Securities to be
sold by the Company represented thereby will be duly authorized and validly
issued, fully paid and non-assessable, and free of preemptive, preferential or,
to such counsel's knowledge, other rights to subscribe for or purchase shares of
Common Securities and, upon delivery to the Underwriters or upon the order
against payment of the agreed consideration therefor in accordance with the
provisions of the Underwriting Agreement, the Underwriters will acquire good and
marketable title thereto, free and clear of any lien, claim, security interest,
encumbrance, or restriction on transfer.
8. The Company is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in Investment Company Act of
1940, as amended.
9. The description in the Registration Statement and the Prospectus of statutes,
laws, regulations, legal and governmental proceedings, and contracts and other
legal documents described therein (insofar as they purport to describe the
provisions of the laws referred to therein), fairly summarize the legal matters
described therein, and fairly and correctly present, in all material respects,
the information to be included therein by the 1933 Act.
10. The Registration Statement was declared effective under the 1933 Act as of
the
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date and time specified in such order, any required filing of the Prospectus or
any supplement thereto pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b) and, to such counsel's knowledge,
no stop order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings therefor have been initiated
or threatened by the Commission.
11. The Registration Statement (including the Rule 430A Information, if
applicable) and the Prospectus and any amendment or supplement thereto (except
for the financial statements and other financial and statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion),
as of their respective effective or issue dates, comply or complied as to form
in all material respects to the applicable requirements of the 1933 Act and the
1933 Act Regulations.
12. To such counsel's knowledge, there are no legal or governmental proceedings
pending to which the Company or the Bank is a party or of which any property of
the Company or the Bank is the subject that are required to be disclosed in the
Registration Statement or that would affect the consummation of the transactions
contemplated in the Underwriting Agreement, or the Common Securities, and such
counsel knows of no such proceedings that are threatened or contemplated by
governmental authorities or threatened by others, other than those disclosed in
the Registration Statement.
13. To such counsel's knowledge, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be described in
the Registration Statement or to be filed as exhibits thereto other than those
described therein or filed or incorporated by reference as exhibits thereto, and
such instruments as are summarized in the Registration Statement are fairly
summarized in all material respects.
14. No approval, authorization, consent, registration, qualification or other
order of any public board or body is required in connection with the execution
and delivery of the Underwriting Agreement or the issuance and sale of the
Common Securities or the consummation by the Company of the other transactions
contemplated by the Underwriting Agreement, except such as have been obtained
under the 1933 Act and the 1934 Act or such as may be required under the blue
sky or securities laws of various states in connection with the offering and
sale of the Common Securities.
15. To such counsel's knowledge, the Company and each of its subsidiaries,
including the Bank, each has all material licenses, permits and other
governmental authorizations currently required for the conduct of its business
as presently conducted.
16. The execution and delivery of the Underwriting Agreement, the issue and sale
of the Common Securities, the compliance by the Company with the provisions of
the Common Securities and the Underwriting Agreement and the consummation of the
transactions therein contemplated will not conflict with or constitute a breach
of, or default under, the articles of incorporation or by-laws of the Company or
the Bank or, to
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such counsel's knowledge, a breach or default under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which either the
Company or the Bank is a party or by which any of them or any of their
respective properties may be bound except for such breaches as would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and the Bank,
considered as one enterprise, nor, to such counsel's knowledge, will such action
result in a violation on the part of the Company or the Bank of any applicable
law or regulation or of any administrative, regulatory or court decree.
18. The Common Securities are registered under the 1934 Act.
19. Counsel will provide supplementally a written statement that such counsel
has participated in the preparation of the Registration Statement and Prospectus
and has reviewed the documents incorporated by reference in the Prospectus and
no facts have come to the attention of such counsel to lead it to believe (a)
that the Registration Statement (including the Rule 430A Information, if
applicable) or any amendment thereto (except for the financial statements and
other financial or statistical data included therein or omitted therefrom, as to
which such counsel need express no opinion), at the time the Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (b) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom as to which such counsel need express no opinion), at the time the
Prospectus was issued, or at the Closing Time, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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