EXHIBIT 1.1
$125,000,000
5.75% SUBORDINATED NOTES DUE 2013
CITIZENS BANKING CORPORATION
PURCHASE AGREEMENT
January 22, 2003
January 22, 2003
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Citizens Banking Corporation, a Michigan corporation (the "COMPANY"),
proposes to issue and sell to the several purchasers named in ERROR! REFERENCE
SOURCE NOT FOUND. hereto (the "INITIAL PURCHASERS"), $125,000,000 principal
amount of its 5.75% Subordinated Notes due 2013 (the "SECURITIES") to be issued
pursuant to the provisions of an Indenture (the "INDENTURE") to be dated as of
the Closing Date (as defined in Section 4) between the Company and JPMorgan
Chase Bank as Trustee (the "TRUSTEE").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act, in offshore transactions in reliance on
Regulation S under the Securities Act ("REGULATION S") and to institutional
accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that deliver a letter in the form annexed to the Final
Memorandum (as defined below).
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement dated the date
hereof between the Company and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT").
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will
prepare a final offering memorandum (the "FINAL MEMORANDUM" and, with the
Preliminary Memorandum, each a "MEMORANDUM") including or incorporating by
reference a description of the terms of the Securities, the terms of the
offering and a description of the Company. As used herein, the term "Memorandum"
shall include in each case the documents incorporated by reference therein. The
terms "SUPPLEMENT", "AMENDMENT" and "AMEND" as used herein with respect to a
Memorandum shall include all documents deemed to be incorporated by reference in
the Preliminary Memorandum or Final Memorandum that are filed subsequent to the
date of such Memorandum with the Securities and Exchange Commission (the
"COMMISSION") pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in either Memorandum complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder and (ii) the
Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Initial Purchasers to confirm sales and on
the Closing Date (as defined in Section 4), will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in either Memorandum
based upon information relating to any Initial Purchaser furnished to the
Company in writing by such Initial Purchaser through you expressly for use
therein.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Michigan, is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended, has
the corporate power and authority to own its property and to conduct its
business as described in each Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(c) Each of Citizens Bank-Illinois N.A. and CB Wealth Management N.A.
has been duly incorporated and is validly existing as national banking
association in good standing under the laws of the United States and each of
Citizens Bank, F&M Bank-Wisconsin and F&M Bank-Iowa (together with Citizens
Bank-Illinios N.A. and CB Wealth Management N.A., the "BANKING SUBSIDIARIES")
has been duly incorporated, is validly existing as a bank and is in good
standing as a bank under the laws of the jurisdiction of its incorporation.
(d) Each of Citizens Commercial Leasing Corporation, CB Financial
Services, Inc., Citizens Bank Mortgage Corporation, Citizens Title Services,
Inc., Citizens Service Company, Inc., Citizens Bank Consumer Finance, LLC,
Citizens Card Company, CB Capital Management, Inc., Pulaski Capital Corporation
and Security Bancservices, Inc. (the "NON-BANKING SUBSIDIARIES" and together
with the Banking Subsidiaries, the "SUBSIDIARIES") has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, and each of the Subsidiaries has the
corporate power and authority to own its property and to conduct its business as
described in each Memorandum and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
all of the issued shares of capital stock of each Subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with the terms of this
Agreement, will be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to the effects of applicable
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bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally and equitable principles of general applicability, and will be
entitled to the benefits of the Registration Rights Agreement and the Indenture,
pursuant to which such Securities are to be issued.
(g) Each of the Indenture and the Registration Rights Agreement has
been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms, subject to
the effects of applicable bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally and equitable principles of general
applicability and except as rights to indemnification and contribution under the
Registration Rights Agreement may be limited under applicable law.
(h) On the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT"), and the rules and regulations of the Commission
applicable to an indenture that is qualified thereunder.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Registration Rights Agreement and the Securities will not contravene any
provision of applicable law or the Articles of Incorporation or By-laws of the
Company or any agreement or other instrument binding upon the Company or any of
its Subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture, the Registration Rights Agreement or the
Securities, except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Securities and
by federal and state securities laws with respect to the Company's obligations
under the Registration Rights Agreement.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Preliminary Memorandum provided to prospective purchasers of the Securities.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is a party or to
which any of the properties of the Company or any of its Subsidiaries is
subject, other than proceedings accurately described in all material respects in
each Memorandum, that would have a material adverse effect on the Company and
its subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under this Agreement, the Indenture, the Registration
Rights Agreement or the Securities or to consummate the transactions
contemplated by the Final Memorandum.
(l) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations relating
to the protection of
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human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have received
all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(m) There are no costs or liabilities associated with Environmental
Laws which would, singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties (whether acquired through foreclosure or otherwise or
whether acquired or held as principal or in a fiduciary or lending capacity or
otherwise), compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties)
(n) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Final Memorandum will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(o) Neither the Company nor any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act, an "AFFILIATE") of the Company has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Securities
in a manner that would require the registration under the Securities Act of the
Securities or (ii) offered, solicited offers to buy or sold the Securities by
any form of general solicitation or general advertising (as those terms are used
in Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(p) None of the Company, its Affiliates or any person acting on its or
their behalf has engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Securities and the Company and
its Affiliates and any person acting on its or their behalf have complied and
will comply with the offering restrictions requirement of Regulation S.
(q) It is not necessary in connection with the offer, sale and delivery
of the Securities to the Initial Purchasers in the manner contemplated by this
Agreement to register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act.
(r) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(s) The Company and its Subsidiaries possess all certificates,
licenses, authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective businesses,
and neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
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certificate, license, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
material adverse affect on the Company and its subsidiaries, taken as a whole;
each of the Company and its Banking Subsidiaries is in material compliance will
all applicable federal, state or foreign bank regulatory requirements, laws and
regulations.
(t) There are no written agreements or other written statements as
described under 12 U.S.C. 1818(u) between any federal banking agency and the
Company or any subsidiary (whether or not such federal banking agency has
determined that publication would be contrary to the public interest) and except
as disclosed to the Initial Purchasers, there are no material agreements,
memoranda of understanding, cease and desist orders, orders of prohibition or
suspension or consent decrees between any federal or state regulatory authority
and the Company or any subsidiary.
2. Agreements to Sell and Purchase. The Securities are to be offered to
purchasers at 99.646% of their principal amount. The Company hereby agrees to
sell to the several Initial Purchasers, and each Initial Purchaser, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective principal amount of Securities set forth in
ERROR! REFERENCE SOURCE NOT FOUND. hereto opposite its name at a purchase price
of 98.996% of the principal amount thereof (the "PURCHASE PRICE").
The Company hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Initial Purchasers, it will
not, during the period beginning on the date hereof and continuing to and
including the Closing Date, offer, sell, contract to sell or otherwise dispose
of any debt of the Company or warrants to purchase debt of the Company,
substantially similar to the Securities (other than the sale of the Securities
under this Agreement).
3. Terms of Offering. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Securities for the respective accounts of the several
Initial Purchasers at 10:00 a.m., New York City time, on January 27, 2003, or at
such other time on the same or such other date, not later than February 3, 2003,
as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
The Securities shall be in definitive form or global form, as specified
by you, and registered in such names and in such denominations as you shall
request in writing not later than one full business day prior to the Closing
Date. The Securities shall be delivered to you on the Closing Date for the
respective accounts of the several Initial Purchasers, with any transfer taxes
payable in connection with the transfer of the Securities to the Initial
Purchasers duly paid, against payment of the Purchase Price therefor.
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5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Securities on
the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded the Company or
any of the Company's securities or in the rating outlook for the
Company by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Preliminary Memorandum provided to prospective purchasers of the
Securities that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Securities on
the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC, counsel for the Company, dated the Closing Date,
to the effect set forth in Exhibit A. Such opinion shall be rendered to the
Initial Purchasers at the request of the Company and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, dated the
Closing Date, to the effect set forth in Exhibit B.
(e) The Initial Purchasers shall have received on each of the date
hereof and the Closing Date a letter, dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Initial
Purchasers, from Ernst & Young LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into
each Memorandum;
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provided that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than the date hereof.
(f) The Initial Purchasers shall have received on and as of the Closing
Date satisfactory evidence of the good standing of the Company, and its Banking
Subsidiaries in their respective jurisdictions of organization in writing or any
standard form of telecommunication from the appropriate governmental authorities
of such jurisdictions.
(g) On or prior to the Closing Date, the Company shall have furnished
to the Initial Purchasers such further certificates and documents as the Initial
Purchasers may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Initial Purchasers.
6. Covenants of the Company. In further consideration of the agreements
of the Initial Purchasers contained in this Agreement, the Company covenants
with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 10:00
a.m. New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(c), as many copies of the
Final Memorandum, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to furnish to
you a copy of each such proposed amendment or supplement and not to use any such
proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the date
on which all of the Securities shall have been sold by the Initial Purchasers,
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Final Memorandum in order to make the statements
therein, in the light of the circumstances when the Final Memorandum is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Initial Purchasers, it is necessary to amend or supplement the Final
Memorandum to comply with applicable law, forthwith to prepare and furnish, at
its own expense, to the Initial Purchasers, either amendments or supplements to
the Final Memorandum so that the statements in the Final Memorandum as so
amended or supplemented will not, in the light of the circumstances when the
Final Memorandum is delivered to a purchaser, be misleading or so that the Final
Memorandum, as amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and
7
expenses of the Company's counsel and the Company's accountants in connection
with the issuance and sale of the Securities and all other fees or expenses in
connection with the preparation of each Memorandum and all amendments and
supplements thereto, including all printing costs associated therewith, and the
delivering of copies thereof to the Initial Purchasers, in the quantities herein
above specified, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Initial Purchasers, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or legal investment memorandum in connection with the offer and sale of the
Securities under state securities laws and all expenses in connection with the
qualification of the Securities for offer and sale under state securities laws
as provided in Section 6(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Initial Purchasers in connection with
such qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) any fees charged by rating agencies for the rating of the
Securities, (v) the costs and charges of the Trustee and any transfer agent,
registrar or depositary, (vi) the cost of the preparation, issuance and delivery
of the Securities, (vii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered (but only with the Company's
consent) in connection with such road show, and (viii) all other costs and
expenses incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8, and the last
paragraph of Section 10, the Initial Purchasers will pay all of their costs and
expenses, including fees and disbursements of their counsel, transfer taxes
payable on resale of any of the Securities by them and any advertising expenses
connected with any offers they may make.
(f) Neither the Company nor any Affiliate will sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the Securities Act) which could be integrated with the sale of the
Securities in a manner which would require the registration under the Securities
Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by
means of any form of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within
the meaning of the Securities Act, to make available, upon request, to any
seller of such Securities the information specified in Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to Section 13 or 15(d) of the
Exchange Act.
(i) None of the Company, its Affiliates or any person acting on its or
their behalf (other than the Initial Purchasers) will engage in any directed
selling efforts (as that term is defined in Regulation S) with respect to the
Securities, and the Company and its Affiliates and
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each person acting on its or their behalf (other than the Initial Purchasers)
will comply with the offering restrictions requirement of Regulation S.
(j) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to resell any of the Securities which constitute
"restricted securities" under Rule 144 that have been reacquired by any of them.
(k) Not to take any action prohibited by Regulation M under the
Exchange Act in connection with the distribution of the Securities contemplated
hereby.
7. Offering of Securities; Restrictions on Transfer.
(a) Each Initial Purchaser, severally and not jointly, represents and
warrants that such Initial Purchaser is a qualified institutional buyer as
defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser,
severally and not jointly, agrees with the Company that:
(i) it has not and will not solicit offers for, or offer or
sell, such Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and
(ii) it has solicited and will solicit offers for such
Securities only from, and has offered and will offer such Securities
only to, persons that it reasonably believes to be (A) in the case of
offers inside the United States, (1) QIBs or (2) other institutional
accredited investors, as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that,
prior to their purchase of the Securities, deliver to such Initial
Purchaser a letter containing the representations and agreements set
forth in Appendix A to the Memorandum and (B) in the case of offers
outside the United States, persons other than U.S. persons (including
dealers or other professional fiduciaries in the United States acting
on a discretionary basis for foreign beneficial owners (other than an
estate or trust)) in reliance upon Regulation S under the Securities
Act that, in each case, in purchasing such Securities are deemed to
have represented and agreed as provided in the Final Memorandum under
the caption "Notice to Investors".
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United States
that:
(i) such Initial Purchaser understands that no action has been
or will be taken in any jurisdiction by the Company that would permit a
public offering of the Securities, or possession or distribution of
either Memorandum or any other offering or publicity material relating
to the Securities, in any country or jurisdiction where action for that
purpose is required;
(ii) such Initial Purchaser will comply with all applicable
laws and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Securities or has in its possession or distributes
either Memorandum or any such other material, in all cases at its own
expense;
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(iii) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in
accordance with Rule 144A or Regulation S under the Securities Act or
pursuant to another exemption from the registration requirements of the
Securities Act;
(iv) such Initial Purchaser has offered the Securities and
will offer and sell the Securities (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in accordance
with Rule 903 of Regulation S or as otherwise permitted in Section
7(a); accordingly, neither such Initial Purchaser, its Affiliates nor
any persons acting on its or their behalf have engaged or will engage
in any directed selling efforts (within the meaning of Regulation S)
with respect to the Securities, and any such Initial Purchaser, its
Affiliates and any such persons have complied and will comply with the
offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and,
prior to the date six months after the Closing Date, will not offer or
sell any Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995;
(B) has complied and will comply with all applicable provisions of the
Financial Services and Markets ▇▇▇ ▇▇▇▇ (the "FSMA") with respect of
anything done by it in relation to the Securities in, from or otherwise
involving the United Kingdom, and (C) will only communicate or cause to
be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the FSMA) received by it
in connection with the issue or sale of the Securities in circumstances
in which section 21(1) of the FSMA does not apply to the Company; (vi)
such Initial Purchaser understands that the Securities have not been
and will not be registered under the Securities and Exchange Law of
Japan, and represents that it has not offered or sold, and agrees not
to offer or sell, directly or indirectly, any Securities in Japan or
for the account of any resident thereof except pursuant to any
exemption from the registration requirements of the Securities and
Exchange Law of Japan and otherwise in compliance with applicable
provisions of Japanese law; and
(vii) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been
registered under the U.S. Securities Act of 1933 (the
"Securities Act") and may not be offered and sold within the
United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of
the offering and the closing date, except in either case in
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accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in this Section 7(b) have the meanings given to them by
Regulation S.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Initial Purchaser, each person, if any, who controls any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and each affiliate of any Initial Purchaser
within the meaning of Rule 405 under the Securities Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in either Memorandum (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through you expressly for use therein;
provided, however, that the indemnification contained in this paragraph (a) with
respect to the Preliminary Memorandum shall not inure to the benefit of the
Initial Purchasers (or to the benefit of any person controlling the Initial
Purchasers) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Securities by the Initial Purchasers to any person
if the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in the Preliminary Memorandum was
corrected in the Final Memorandum and the Initial Purchasers sold Securities to
that person without sending or giving to such person at or prior to the written
confirmation of such sale, a copy of the Final Memorandum.
(a) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Initial Purchaser, but only
with reference to information relating to such Initial Purchaser furnished to
the Company in writing by such Initial Purchaser through you expressly for use
in either Memorandum or any amendments or supplements thereto.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party
11
shall have mutually agreed to the retention of such counsel, (ii) the
indemnifying party shall have failed to assume the defense and employ counsel or
(iii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, in the case of parties indemnified pursuant to Section 8(a), and
by the Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company on the one
hand and of the Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Initial
Purchasers, in each case as set forth in the Final Memorandum, bear to the
aggregate offering price of the Securities. The relative fault of the Company on
the one hand and of the Initial Purchasers on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
12
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective principal amount of Securities they have
purchased hereunder, and not joint.
(d) The Company and the Initial Purchasers agree that it would not be
just or equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities resold by
it in the initial placement of such Securities were offered to investors exceeds
the amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in this Section
8 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Initial Purchaser, any person controlling any Initial
Purchaser or any affiliate of any Initial Purchaser or by or on behalf of the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Securities.
9. Termination. The Initial Purchasers may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) a general moratorium on commercial banking activities shall
have been declared by United States or New York State banking authorities or (v)
there shall have occurred any outbreak or escalation of hostilities or other
United States or international calamity or crisis or any change in financial,
political or economic conditions the effect of which, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Securities on the
terms and in the manner contemplated in the Final Memorandum.
13
10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, the other Initial
Purchasers shall be obligated severally in the proportions that the principal
amount of Securities set forth opposite their respective names in SCHEDULE I
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Initial Purchasers, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Initial Purchaser has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Final Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
14
14. Notices. Any notice permitted or required hereunder shall be in
writing and shall be deemed to have been delivered if sent by first-class mail
or facsimile (i) to the Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel, facsimile telephone
number: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇, facsimile telephone
number: ▇▇▇-▇▇▇-▇▇▇▇, and (ii) to the Initial Purchasers, c/o Morgan ▇▇▇▇▇▇▇ &
Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ III, facsimile telephone number: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., facsimile telephone number: ▇▇▇-▇▇▇-▇▇▇▇.
* * *
15
Very truly yours,
CITIZENS BANKING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: General Counsel & Secretary
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
Acting severally on behalf of themselves and the
several Initial Purchasers named in
SCHEDULE I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
Title: Executive Director
16
SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES TO BE
INITIAL PURCHASER PURCHASED
----------------- ---------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated................................. $50,000,000
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc...................................... $50,000,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Inc......................................... $5,000,000
Credit Suisse First Boston LLC.................................... $5,000,000
▇▇▇▇▇▇▇▇▇▇ & Co. Inc.............................................. $5,000,000
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc...................................... $5,000,000
McDonald Investments Inc., A KeyCorp Company...................... $5,000,000
Total:................................................... $125,000,000
============
EXHIBIT A
OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC
The opinion of the counsel for the Company, to be delivered pursuant to
Section 5(c) of the Purchase Agreement shall be to the effect that:
A. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Michigan, is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended, has
the corporate power and authority to own its property and to conduct its
business as described in the Final Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
B. Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Final Memorandum
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; all of the issued shares
of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or claims.
C. Citizens Bank-Illinois N.A. is validly existing as national banking
association in good standing under the laws of the United States and each of
Citizens Bank, F&M Bank-Wisconsin and F&M Bank-Iowa is validly existing as a
bank and in good standing as a bank under the laws of the jurisdiction of its
incorporation.
D. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
E. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in accordance with the
terms of the Purchase Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to the effects of
applicable bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights generally and equitable principles of general applicability
and will be entitled to the benefits of the Indenture and the Registration
Rights Agreement pursuant to which such Securities are to be issued.
F. Each of the Indenture and the Registration Rights Agreement has been
duly authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law, and except as rights to indemnification and
contribution under the Registration Rights Agreement may be limited under
applicable law.
G. The Indenture conforms in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission applicable to
an indenture that is qualified thereunder.
H. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Purchase Agreement, the Indenture, the
Registration Rights Agreement and the Securities will not contravene any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under the Purchase Agreement, the Indenture, the Registration
Rights Agreement or the Securities, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Securities and by Federal and state securities laws with respect
to the Company's obligations under the Registration Rights Agreement.
I. After due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject other than proceedings fairly summarized in
all material respects in the Final Memorandum and proceedings which such counsel
believes are not likely to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under the Purchase Agreement, the Indenture, the
Registration Rights Agreement or the Securities or to consummate the
transactions contemplated by the Final Memorandum.
J. The Company is not, and after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as described in
the Final Memorandum will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
K. The statements relating to legal matters, documents or proceedings
included in the Final Memorandum under the captions "Regulation and
Supervision," "Exchange Offer; Registration Rights," "Notice to Investors,"
"Considerations for Employee Benefit Plan Investors" and "Plan of Distribution"
and in "Item 3-Legal Proceedings" of the Company's most recent annual report on
Form 10-K and in "Item 5-Other Events" of any current report on Form 8-K
included or incorporated by reference in the Final Memorandum, fairly summarize
in all material respects such matters, documents or proceedings.
2
L. The statements in the Final Memorandum under the caption "Certain
Federal Income Tax Consequences," insofar as such statements constitute a
summary of the United States federal tax laws referred to therein, are accurate
and fairly summarize in all material respects the United States federal tax laws
referred to therein.
M. Nothing has come to the attention of such counsel that causes such
counsel to believe that (i) each document incorporated by reference in the Final
Memorandum (except for the financial statements and financial schedules and
other financial and statistical data included therein, as to which such counsel
need not express any belief), did not comply as to form when filed with the
Commission in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder and (ii) the Final Memorandum (except
for the financial statements and financial schedules and other financial and
statistical data, as to which such counsel need not express any belief) when
issued contained, or as of the date such opinion is delivered contains, any
untrue statement of a material fact or omitted or omits 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.
With respect to the matters referred to in the paragraph above, counsel
may state that his or her beliefs are based upon his or her participation in the
preparation of the Final Memorandum (and any amendments or supplements thereto)
and review and discussion of the contents thereof and review of the documents
incorporated by reference therein, but are without independent check or
verification except as specified.
N. Based upon the representations, warranties and agreements of the
Company in Sections 1(o), 1(p), 1(r), 6(f), 6(g) and 6(i) of the Purchase
Agreement and of the Initial Purchasers in Section 7 of the Purchase Agreement,
it is not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers under the Purchase Agreement or in
connection with the initial resale of such Securities by the Initial Purchasers
in accordance with Section 7 of the Purchase Agreement to register the
Securities under the Securities Act of 1933 or to qualify the Indenture under
the Trust Indenture Act, it being understood that no opinion is expressed as to
any subsequent resale of any Security.
The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC described above shall be rendered to
the Initial Purchasers at the request of the Company and shall so state therein.
3
EXHIBIT B
OPINION OF ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ to be delivered pursuant to
Section 5(d) of the Purchase Agreement shall be to the effect that:
A. Assuming the Securities have been duly authorized by the Company,
the Securities, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of the Purchase Agreement, will be valid
and binding obligations of the Company, enforceable in accordance with their
terms, subject to the effects of applicable bankruptcy, insolvency and similar
laws affecting the enforcement of creditors' rights generally and equitable
principles of general applicability, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
B. Assuming each of the Indenture and the Registration Rights Agreement
has been duly authorized, executed and delivered by the Company, each of the
Indenture and the Registration Rights Agreement is a valid and binding agreement
of the Company, enforceable in accordance with its terms, subject to the effects
of applicable bankruptcy, insolvency and similar laws affecting the enforcement
of creditors' rights generally and equitable principles of general
applicability, and except as rights to indemnification and contribution under
the Registration Rights Agreement may be limited under applicable law.
C. The statements relating to legal matters or documents included in
the Final Memorandum under the captions "Plan of Distribution" and "Description
of the Notes" fairly summarize in all material respects such matters or
documents.
D. Nothing has come to the attention of such counsel to cause such
counsel to believe that (except for the financial statements and financial
schedules and other financial and statistical data, as to which such counsel
need not express any belief) the Final Memorandum when issued contained, or as
of the date such opinion is delivered contains, any untrue statement of a
material fact or omitted or omits 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.
With respect to the matters referred to in the paragraph above, ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their beliefs are based upon their participation
in the preparation of the Final Memorandum (and any amendments or supplements
thereto) and review and discussion of the contents thereof (including the review
of, but not participation in the preparation of, the incorporated documents),
but are without independent check or verification except as specified.
E. Assuming the accuracy of, and compliance with, the representations,
warranties and agreements of the Company in Sections 1(o), 1(p), 1(r), 6(f),
6(g) and 6(i) of the Purchase Agreement and of the Initial Purchasers in Section
7 of the Purchase Agreement, it is not necessary in connection with the offer,
sale and delivery of the Securities to the
Initial Purchasers under the Purchase Agreement or in connection with the
initial resale of such Securities by the Initial Purchasers in accordance with
Section 7 of the Purchase Agreement to register the Securities under the
Securities Act of 1933 or to qualify the Indenture under the Trust Indenture Act
of 1939, as amended, it being understood that no opinion is expressed as to any
subsequent resale of any Security.
2