$20,000,000
UNB Capital Trust I
10.01% Capital Securities
(Liquidation Amount $1,000 per Capital Security)
guaranteed by
United National Bancorp
PURCHASE AGREEMENT
March 18, 1997
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇, ▇▇▇▇ & CO.
as the Initial Purchasers
c/o Keefe, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
UNB Capital Trust I (the "Trust"), a statutory business trust created
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801 et seq.))
and United National Bancorp (the "Company," and together with the Trust, the
"Offerors") confirm their agreement (the "Agreement") with ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, Inc. ("KBW") and ▇▇▇▇, ▇▇▇▇ & Co. (together, the "Initial Purchasers"),
which terms shall also include any initial purchaser substituted as hereinafter
provided in Section 10 hereof, with respect to the issue and sale by the Trust
and the purchase by the Initial Purchasers, acting severally and not jointly of
the respective number set forth in Schedule A of 10.01% Capital Securities
(liquidation amount of $1,000 per security) of the Trust (the "Capital
Securities"). The Capital Securities will be guaranteed by the Company, to the
extent described in the Offering Memorandum (as defined below), with respect to
distributions and payments upon liquidation, redemption and otherwise pursuant
to the Capital Securities Guarantee Agreement (the "Capital Securities
Guarantee"), to be dated as of March 21, 1997, between the Company and the Bank
of New York, as Trustee (the "Guarantee Trustee"). The Capital Securities issued
in book-entry form will be issued to Cede & Co. as nominee of The Depository
Trust Company ("DTC") pursuant to an additional or supplemented letter
agreement, to be dated on or prior to the Closing Time (as defined in Section
2(b)) (the "DTC Agreement"), among the Trust, the Guarantee Trustee and DTC.
The Company is a registered bank holding company under the provisions
of the Bank Holding Company Act of 1956, as amended, whose banking subsidiary is
UNB, a federally chartered national banking association organized under the laws
of the United States (the "Bank"). The entire proceeds from the sale of the
Capital Securities will be combined with the entire proceeds from the sale by
the Trust to the Company of its common securities (the "Common Securities"), as
guaranteed by the Company, to the extent set forth in the Offering Memorandum,
with respect to distributions and payments upon liquidation, redemption and
otherwise pursuant to the Common Securities Guarantee Agreement (the "Common
Securities Guarantee" and, together with the Capital Securities Guarantee, the
"Guarantees"), to be dated as of March 21, 1997, made by the Company, and will
be used by the Trust to purchase $20,619,000 in aggregate principal amount of
the 10.01% Junior Subordinated Deferrable Interest Debentures due March 15, 2027
(the "Subordinated Debentures") issued by the Company. The Capital Securities
and the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust, to be dated as of March 21, 1997 (the "Declaration"),
among the Company, as sponsor, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., as
administrative trustees (the "Administrative Trustees"), The Bank of New York,
as property trustee (the "Property Trustee"), and The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee," and, together with the
Property Trustee and the Administrative Trustees, the "Trustees"). The
Subordinated Debentures will be issued pursuant to an indenture, to be dated as
of March 21, 1997 (the "Indenture"), between the Company and The Bank of New
York, as trustee (the "Debenture Trustee").
The Capital Securities, the Capital Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the "Initial
Securities."
The Initial Securities will be subject to the registration rights set
forth in the registration rights agreement (the "Registration Rights
Agreement"), to be executed on and dated as of the Closing Time. Pursuant to the
Registration Rights Agreement, the Offerors will agree, among other things, to
file with the Securities and Exchange Commission (the "Commission") (i) a
registration statement (the "Exchange Offer Registration Statement") under the
United States Securities Act of 1933, as amended (the"1933 Act"), relating to
another series of capital securities (liquidation amount $1,000 per security) of
the Trust (the "Exchange Capital Securities"), another capital securities
guarantee (the "Exchange Capital Securities Guarantee"), and another series of
Junior Subordinated Deferrable Interest Debentures due March 15, 2027 (the
"Exchange Subordinated Debentures" and, collectively with the Exchange Capital
Securities and the Exchange Capital Securities Guarantee, the "Exchange
Securities"), to be offered in exchange for the Initial Securities (such offer
to exchange being referred to as the "Exchange Offer") and/or (ii) a shelf
registration statement (the "Shelf Registration Statement") pursuant to Rule 415
of the rules and regulations under the 1933 Act (the "1933 Act Regulations")
relating to the resale by certain holders of the Capital Securities. The
Registration Rights Agreement shall be in a form, and shall contain terms and
provisions, customary for similar Rule 144A transactions, and shall otherwise be
in form and substance reasonably satisfactory to KBW.
The Initial Securities and the Exchange Securities are jointly referred
to as the "Securities". The Indenture, the Declaration, the Guarantees, the
Registration Rights Agreement, the DTC Agreement and this Agreement are
hereinafter referred to collectively as the "Operative Documents."
The Offerors understand that the Initial Purchasers propose to make an
offering of the Capital Securities (as guaranteed by the Capital Securities
Guarantee) on the terms and in the manner set forth herein and agree that the
Initial Purchasers may resell, subject to the conditions set forth herein, all
or a portion of the Capital Securities to purchasers ("Subsequent Purchasers")
at any time after the date of this Agreement. The Capital Securities are to be
offered and sold through the Initial Purchasers without being registered under
the 1933 Act, in reliance upon exemptions therefrom. Pursuant to the terms of
the Capital Securities, investors that acquire Capital Securities may only
resell or otherwise transfer such Capital Securities if such Capital Securities
are hereafter registered under the 1933 Act or if an exemption from the
registration requirements of the 1933 Act is available (including the exemption
afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation S") of the 1933
Act Regulations).
The Offerors have prepared and delivered to the Initial Purchasers
copies of a preliminary offering memorandum dated March __, 1997 (the
"Preliminary Offering Memorandum") and have prepared and will deliver to the
Initial Purchasers, as soon as practicable, copies of a final offering
memorandum, dated March 18, 1997 (the "Final Offering Memorandum"), each for use
by the Initial Purchasers in connection with their respective solicitation of
purchases of, or offering of, the Capital Securities. "Offering Memorandum"
means, with respect to any date or time referred to in this Agreement, the most
recent offering memorandum (whether the Preliminary Offering Memorandum or the
Final Offering Memorandum, or any amendment or supplement to either such
document), including exhibits thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the Offerors to the Initial
Purchasers in connection with their solicitation of purchases of, or offering
of, the Capital Securities.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "disclosed" or
"stated" in the Offering Memorandum (or other references of like import) shall
be deemed to mean and include all such financial statements and schedules and
other information which are incorporated by reference in the Offering
Memorandum; and all references in this Agreement to amendments or supplements to
the Offering Memorandum shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the "1934 Act")
which is incorporated by reference in the Offering Memorandum.
Representations and Warranties.
The Offerors jointly and severally represent and warrant to
each of the Initial Purchasers as of the date hereof and as of the Closing Time,
and agree with each of the Initial Purchasers as follows:
The Offerors have not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly, solicit
any offer to buy or offer to sell, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the sale
of the Capital Securities in a manner that would require the Capital Securities
to be registered under the 1933 Act.
The Offering Memorandum does not, and at the Closing Time
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, in the light of
the circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in or
omissions from the Offering Memorandum made in reliance upon and in conformity
with information furnished to the Offerors in writing by or on behalf of any
Initial Purchaser expressly for use in the Offering Memorandum.
The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time they were or hereafter are
filed with the Commission complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read together with the other
information in the Offering Memorandum, at the date of the Offering Memorandum
and at the Closing Time, do not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The financial statements of the Company incorporated by
reference in the Offering Memorandum present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates indicated and the
results of operations and changes in financial position of such entities for the
periods specified; except as otherwise stated in the Offering Memorandum, such
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis; and the supporting
schedules for the Company and its consolidated subsidiaries incorporated by
reference in the Offering Memorandum present fairly the information required to
be stated therein. The summary financial data included in the Offering
Memorandum present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements included in
the Offering Memorandum.
The accountants who certified the financial statements and
supporting schedules of the Company and its consolidated subsidiaries
incorporated by reference in the Offering Memorandum are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
Since the respective dates as of which information is given
in the Offering Memorandum, except as may otherwise be stated in, or referred to
therein: (1) there has not been any material adverse change in the condition,
financial or otherwise, of the Trust or of the Company and its consolidated
subsidiaries considered as one enterprise, or in the earnings, assets, business
affairs or business prospects of the Trust or of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (2) there have not been any transactions entered
into by the Trust or by the Company or any of its subsidiaries other than in the
ordinary course of business which are material to the Trust or the Company and
its consolidated subsidiaries considered as one enterprise, and (3) except for
regular quarterly dividends on the Company's outstanding shares of common stock,
there has been no dividend or distribution of any kind declared, paid or made by
the Company on its capital stock or by the Trust on any class of its securities.
The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of New
Jersey and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering Memorandum
and to enter into and perform its obligations under this Agreement; the Company
is duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiary considered as one enterprise; and the Company is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended.
The Bank is a duly organized and validly existing federally
chartered national banking association organized under the laws of the United
States, has full power and authority to own, lease and operate its properties
and to conduct its business as described in the Offering Memorandum and is duly
authorized to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of the Bank has been
duly authorized and validly issued, is fully paid and non-assessable and is
directly owned by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of the Bank was issued in violation of the preemptive or
similar rights arising by operation of law, under the charter or by-laws of any
subsidiary or under any agreement to which the Company or the Bank is a party.
The Company and its subsidiaries have good and marketable
title to all properties (real and personal) owned by the Company and its
subsidiaries, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as (a)
are described in the Offering Memorandum or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company or its
subsidiaries; and all properties held under lease by the Company or its
subsidiaries are held under valid, subsisting and enforceable leases, except
where the failure to hold such leases would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
The authorized, issued and outstanding capital stock of the
Company set forth in the Offering Memorandum under the heading "Capitalization"
is accurate as of the date indicated in such document; and the shares of such
issued and outstanding capital stock have been duly authorized and validly
issued and are fully paid and non-assessable and such capital stock conforms in
all material respects to all statements relating thereto contained in the
Offering Memorandum.
The Trust has been duly created and is validly existing in
good standing as a statutory business trust under the Delaware Act with the
power and authority to own property and to conduct its business as described in
the Offering Memorandum and to enter into and perform its obligations under the
Operative Documents, as applicable, and the Capital Securities; the Trust is not
a party to or otherwise bound by any material agreement other than those
described in the Offering Memorandum; the Trust is and will, under current law,
be classified for United States federal income tax purposes as a grantor trust
and not as an association taxable as a corporation; the Trust does not have any
consolidated or unconsolidated subsidiaries; the Trust is and will be treated as
a consolidated subsidiary of the Company pursuant to GAAP; and the Trust is not
required to be authorized to do business in any jurisdiction other than the
State of Delaware, except where the failure to be so authorized would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Offering Memorandum, will be validly issued
and will represent undivided beneficial interests in the assets of the Trust;
the issuance of the Common Securities is not subject to preemptive or other
similar rights; and at the Closing Time all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
As of the Closing Time, the Capital Securities will have
been duly authorized by the Trust and, when issued and delivered against payment
therefor as provided herein, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the Trust and
will conform to the description thereof contained in the Offering Memorandum and
the issuance of the Capital Securities will not be subject to preemptive or
other similar rights; and as of the Closing Time, the Exchange Capital
Securities will have been duly authorized by the Trust, and when issued in
accordance with the Declaration, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the Trust. The holders of the
Capital Securities and the Exchange Capital Securities, respectively, as
beneficial owners of the Trust, will be entitled to the same limitation of
personal liability as that extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
The execution and delivery by the Trust and the Company of
this Agreement and the performance by the Trust and the Company of their
respective obligations hereunder, have been duly authorized by all necessary
business trust action on the part of the Trust and corporate action on the part
of the Company; and this Agreement has been duly executed and delivered by the
Trust and the Company.
The Declaration has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the Company
and the Trustees, and assuming due authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware Trustee, the Declaration
will, at the Closing Time, be a valid and binding obligation of the Company and
the Trustees, enforceable against the Company and the Trustees in accordance
with its terms, except to the extent that enforcement thereof may be limited by
the receivership, conservatorship and supervisory powers of bank regulatory
agencies generally as well as to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally or by
general principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity) and the availability of equitable remedies
(collectively, the "Enforceability Exceptions"); and at the time the Exchange
Offer is consummated, the Declaration will have been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
Each of the Guarantees and the Exchange Capital Securities
Guarantee has been duly authorized by the Company and, at the Closing Time, each
of the Guarantees will have been duly executed and delivered by the Company, and
will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions; at or prior
to the time the Exchange Offer is consummated, the Exchange Capital Securities
Guarantee will have been duly executed and delivered by the Company, and will
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions; and at the time the
Exchange Offer is consummated, the Exchange Capital Securities Guarantee will
have been duly qualified under the 1939 Act.
The Indenture has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the Company
and will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions; and at the
time the Exchange Offer is consummated, the Indenture will have been duly
qualified under the 1939 Act and will conform to the description thereof
contained in the Offering Memorandum.
The Subordinated Debentures have been duly authorized by the
Company and, at the Closing Time, will have been duly executed by the Company
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Offering Memorandum, will
constitute valid and binding obligations of the Company, and the Exchange
Subordinated Debentures have been duly authorized by the Company and, when duly
executed by the Company and authenticated in the manner provided in the
Indenture, will constitute valid and binding obligations of the Company, in each
case, enforceable against the Company in accordance with their terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions; and the Subordinated Debentures will be in the form contemplated by,
and entitled to the benefits of, the Indenture and will conform to the
description thereof in the Offering Memorandum.
The Registration Rights Agreement has been duly authorized
by the Offerors and, at the Closing Time, will have been duly executed and
delivered and will constitute a valid and binding agreement of the Offerors,
enforceable against the Offerors in accordance with its terms, except to the
extent enforcement thereof may be limited by the Enforceability Exceptions; and
the Registration Rights Agreement will conform to the description thereof
contained in the Offering Memorandum.
The Operative Documents, the Capital Securities, the Common
Securities and the Guarantees each conform in all material respects to the
descriptions thereof contained in the Offering Memorandum.
Each of the Administrative Trustees is an officer or
employee of the Company and has been duly authorized by the Company to execute
and deliver the Declaration.
At the Closing Time, the Property Trustee will be the record
holder of the Subordinated Debentures and no security interest, mortgage,
pledge, lien, encumbrance, claim or equity will be noted thereon or on the
Subordinated Debenture register maintained by or on behalf of the Company.
Neither the Trust nor the Company is, and following
consummation of the transactions contemplated hereby will not be, an "investment
company" or a company "controlled" by an "investment company" which is required
to be registered under the Investment Company Act of 1940, as amended (the "1940
Act").
The Trust is not in violation of the Trust Certificate
(defined below) or the Declaration, and neither the Company nor the Bank is in
violation of its charter or by-laws and none of the Trust, the Company or the
Bank is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, loan
agreement, or any contract, note, lease or other instrument to which it is a
party or by which it or its properties may be bound, which violation or default,
singly or in the aggregate, would have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Trust or the Company and its subsidiary considered as
one enterprise; the execution and delivery of this Agreement and the Operative
Documents by the Trust or the Company, as the case may be, and the consummation
by the Offerors of the transactions herein and therein contemplated and the
compliance with the terms of this Agreement and the issuance and delivery of the
Securities have been duly authorized by all necessary corporate action and do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Trust, the Company or the Bank under, any contract, indenture, mortgage, deed of
trust or other material agreement or instrument to which the Trust, the Company
or the Bank is a party or by which it or any of their respective properties are
bound, except for such conflicts, breaches and defaults as, in the aggregate,
would not be material to the Trust, or to the Company and its subsidiary
considered as one enterprise, nor will such action result in any violation of
the charter or by-laws of the Company or the Bank or the Declaration or the
trust certificate of the Trust filed with the State of Delaware on February 21,
1997 (the "Trust Certificate"), or any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Trust, the Company or the Bank or any of their respective properties.
No filing with, or approval, authorization or consent of,
any court or governmental authority or agency is required in connection with the
offering, issuance or sale of the Capital Securities under this Agreement or the
consummation of the transactions contemplated by the Operative Documents, except
such as have been obtained or will have been obtained prior to the Closing Time
or as may be required under state securities laws.
There is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or its subsidiaries which is not disclosed in the
Offering Memorandum which might reasonably be expected to result in any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiary
considered as one enterprise, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective property or assets is the subject which are not
described in the Offering Memorandum, including ordinary routine litigation
incidental to the business could not reasonably be expected to result in a
material adverse change in the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiary considered as one enterprise.
The Company and its subsidiaries have filed all federal,
state, local and foreign tax returns that are required to be filed or have duly
requested extensions thereof and have paid all taxes required to be paid by any
of them and any related assessments, fines or penalties, except for any such
tax, assessment, fine or penalty that is being contested in good faith and by
appropriate proceedings, and adequate charges, accruals and reserves have been
provided for in the financial statements referred to in Section 1(a)(iv) above
in respect of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company or its subsidiaries has not been finally
determined or remains open to examination by applicable taxing authorities.
The Company and its subsidiaries carry or are entitled to
the benefits of insurance in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the same or
similar business, and all such insurance is in full force and effect.
The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general and specific
authorizations; (ii) transactions are recorded as necessary to permit
preparations of financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorizations; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
The Company and its subsidiaries possess such certificates,
authorities, permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiary considered as one enterprise; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a material adverse effect on the condition,
financial or otherwise, earnings, business affairs or business prospects of the
Company and its subsidiary considered as one enterprise; and neither the Company
nor any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiary considered as one enterprise.
The Company and its subsidiaries own or possess or can
acquire on reasonable terms, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "patent and proprietary
rights") presently employed by them in connection with the business now operated
by them as described in the Offering Memorandum, except where lack thereof would
not result in a material adverse change in the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiary considered as one enterprise, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any
patent or proprietary rights or of any facts or circumstances which would render
any patent and proprietary rights invalid or inadequate to protect the interest
of the Company and its subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiary considered as
one enterprise.
No labor dispute with the employees of the Company or its
subsidiaries exists or, to the knowledge of the Company, is imminent.
The Trust, the Company and its subsidiaries are in
compliance with, and conduct their respective businesses in conformity with, all
applicable laws and governmental regulations, the violation of which would have
a material adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs, or business prospects of the Trust, or the Company
and its subsidiaries considered as one enterprise.
Other than such agreements, contracts and other documents as
are described in the Offering Memorandum or otherwise filed as Exhibits to the
Company's annual report on Form 10-K or quarterly reports on Form 10-Q or
current reports on Form 8-K incorporated by reference in the Offering
Memorandum, there are no agreements, contracts or documents of a character
described in Item 601 of Regulation S-K under the 1933 Act to which the Company
or any of the Principal Subsidiaries is a party.
The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Securities.
The Capital Securities are eligible for resale pursuant to
Rule 144A and will not be, at the Closing Time, of the same class as securities
listed on a national securities exchange registered under Section 6 of the 1934
Act, or quoted in a U.S. automated interdealer quotation system.
None of the Trust, the Company, or any of their affiliates,
as such term is defined in Rule 501(b) under the 1933 Act ("Affiliates"), or any
person acting on its or any of their behalf (other than the Initial Purchasers,
as to whom the Offerors make no representation) has engaged or will engage, in
connection with the offering of the Capital Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
1933 Act.
Subject to compliance by the Initial Purchasers with the
procedures set forth in Section 6 hereof, prior to the Exchange Offer, it is not
necessary in connection with the offer, sale and delivery of the Capital
Securities to the Initial Purchasers and to each Subsequent Purchaser in the
manner contemplated by this Agreement and the Offering Memorandum to register
the Capital Securities under the 1933 Act or to qualify any indenture or any
guarantee under the 1939 Act.
With respect to those Capital Securities, if any, sold in
reliance on Regulation S, (A) none of the Trust, the Company, its Affiliates or
any person acting on its or their behalf (other than the Initial Purchasers, as
to whom the Offerors make no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (B) each of the
Trust, the Company and its Affiliates and any person acting on its or their
behalf (other than the Initial Purchasers, as to whom the Offerors make no
representation) has complied and will comply with the offering restrictions
requirement of Regulation S.
Any certificate signed by any Trustee of the Trust or any
duly authorized officer of the Company or the Bank and delivered to you or to
counsel for the Initial Purchasers shall be deemed a representation and warranty
by the Trust or the Company, as the case may be, to the Initial Purchasers as to
the matters covered thereby.
Sale and Delivery to Initial Purchasers; Closing.
On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Initial Purchaser, severally and not jointly, and each
Initial Purchaser agrees to purchase from the Trust, at a price of $1,000 per
Capital Security, the number of Capital Securities set forth in Schedule A
opposite the name of such Initial Purchaser, plus any additional Capital
Securities which such Initial Purchaser may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
Deliveries of certificates for the Capital Securities shall
be made at the office of KBW in New York (or at the offices of ▇▇▇▇▇ & ▇▇▇▇ LLP
specified below in the case of Capital Securities registered in the name of Cede
& Co.), and payment of the purchase price for the Capital Securities shall be
made by the Initial Purchasers to the Trust by wire transfer of immediately
available funds contemporaneous with closing at the offices of ▇▇▇▇▇ & Wood LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M. on March 21,
1997, or such other time not later than ten business days after such date as
shall be agreed upon by KBW and the Offerors (such time and date of payment and
delivery being herein called the "Closing Time").
Payment for the Capital Securities purchased by the Initial Purchasers
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the account of the Initial Purchasers of certificates for
the Capital Securities. Certificates for the Capital Securities shall be in such
denominations and registered in such names as the Initial Purchasers may request
in writing at least one business day before the Closing Time except that no
certificates may be issued in denominations of less than $100,000. It is
understood that each of the Initial Purchasers has authorized KBW for its
account to accept delivery of, receipt for, and make payment of the purchase
price for the Capital Securities which it has agreed to purchase. KBW,
individually and not as representative of the Initial Purchasers, may (but shall
not be obligated to) make payment of the Purchase price for the Capital
Securities to be purchased by any Initial Purchaser whose funds have not been
received by the Closing Time, but such payment shall not relieve such Initial
Purchaser from its obligations hereunder. The certificates representing the
Capital Securities which are not resold to institutional "accredited investors"
shall be registered in the name of Cede & Co. pursuant to the DTC Agreement and
shall be made available for examination and packaging by the Initial Purchasers
in The City of New York not later than 10:00 A.M. on the last business day prior
to the Closing Time.
As compensation to the Initial Purchasers for their
commitments hereunder and in view of the fact that the proceeds of the sale of
the Capital Securities will be used to purchase Subordinated Debentures of the
Company, the Company hereby agrees to pay at the Closing Time to KBW in
immediately available funds, for the several accounts of the Initial Purchasers,
$30.00 per Capital Security to be delivered by the Company hereunder at the
Closing Time.
Each Initial Purchaser, severally and not jointly,
represents and warrants to, and agrees with, the Company that it is a Qualified
Institutional Buyer (as defined in Section 6(a)(i)) and an Institutional
Accredited Investor (as defined in Section 6(a)(i)).
Covenants of the Offerors. The Offerors covenant with each
of the Initial Purchasers as follows:
The Offerors, as promptly as possible, will furnish to each
Initial Purchaser, without charge, such number of copies of the Offering
Memorandum and any amendments and supplements thereto and documents incorporated
by reference therein as such Initial Purchaser may reasonably request.
The Offerors will immediately notify each Initial Purchaser,
and confirm such notice in writing, of (x) any filing made by the Offerors of
information relating to the offering of the Capital Securities with any
securities exchange or any other regulatory body in the United States or any
other jurisdiction, and (y) prior to the completion of the placement of the
Capital Securities by the Initial Purchasers as evidenced by a notice in writing
from the Initial Purchasers to the Offerors, any material changes in or
affecting the earnings, business affairs or business prospects of the Trust, or
the Company and its subsidiary considered as one enterprise, which (i) make any
statement in the Offering Memorandum false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or if during such time any
event shall occur as a result of which it is necessary, in the reasonable
opinion of the Company, its counsel or counsel for the Initial Purchasers, to
amend or supplement the Offering Memorandum in order that the Offering
Memorandum not include any 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 then existing, the Company will forthwith
amend or supplement the Offering Memorandum by preparing and furnishing to the
Initial Purchasers an amendment or amendments of, or a supplement or supplements
to, the Offering Memorandum (in form and substance satisfactory in the
reasonable opinion of counsel for the Initial Purchasers) so that, as so amended
or supplemented, the Offering Memorandum 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, in the light of the circumstances existing at the time it is
delivered to a Subsequent Purchaser, not misleading.
The Offerors will advise each Initial Purchaser promptly of
any proposal to amend or supplement the Offering Memorandum and will not effect
such amendment or supplement without the consent of the Initial Purchasers,
which consent shall not be unreasonably withheld. Neither the consent of the
Initial Purchasers, nor the Initial Purchasers' delivery of any such amendment
or supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
The Offerors will cooperate with the Initial Purchasers and
use their reasonable best efforts to permit the Capital Securities to be
eligible for clearance and settlement through the facilities of DTC.
The Trust will use the proceeds received by it from the sale
of the Capital Securities in the manner specified in the Offering Memorandum
under "Use of Proceeds", and the Company will use the net proceeds received by
it from the sale of the Subordinated Debentures substantially in the manner
specified or contemplated in the Offering Memorandum under "Use of Proceeds".
Prior to the thirtieth day after the date of the Closing
Time, neither the Trust nor the Company will, without the prior written consent
of KBW, directly or indirectly, issue, sell, offer or agree to sell, grant any
option for the sale of, or otherwise dispose of, Capital Securities, any
security convertible into exchangeable or exercisable for Capital Securities or
the Subordinated Debentures or any debt securities substantially similar
(including provisions with respect to the deferral of interest) to the
Subordinated Debentures or any equity security substantially similar to the
Capital Securities (except for the Securities issued pursuant to this
Agreement).
Payment of Expenses.
Expenses. The Company will pay all expenses incident to the
performance of its obligations and the obligations of the Trust under this
Agreement, including (i) the preparation, printing and any filing of the
Preliminary Offering Memorandum, the Final Offering Memorandum (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to the Initial Purchasers of this Agreement,
the Operative Documents and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the
Securities to the Initial Purchasers, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) rating agency fees and
(vi) the fees and expenses of any trustee appointed under any of the Operative
Documents, including the fees and disbursements of counsel for such trustees in
connection with the Operative Documents.
Termination of Agreement. If this Agreement is terminated by
the Initial Purchasers in accordance with the provisions of Section 5 or Section
9 hereof, the Company shall reimburse the Initial Purchasers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of ▇▇▇▇▇
& ▇▇▇▇ LLP, counsel for the Initial Purchasers.
Conditions of the Initial Purchasers' Obligations. The
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Offerors contained in
Section 1 hereof or in certificates of any Trustee of the Trust, officer of the
Company or any of its subsidiaries delivered pursuant to the provisions hereof,
to the performance by the Offerors of their obligations hereunder, and to the
following further conditions:
Opinion of Outside Counsel for Offerors. At the Closing
Time, the Initial Purchasers shall have received the favorable opinion, dated as
of the Closing Time, of Pitney, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, counsel for the Company,
to the effect set forth in Exhibit A hereto.
Opinion of Special Delaware Counsel for Offerors. At the
Closing Time, the Initial Purchasers shall have received the favorable opinion,
dated as of the Closing Time, of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, special
Delaware counsel to the Offerors to the effect set forth in Exhibit B hereto.
Opinions of Counsel for The Bank of New York. At the Closing
Time, the Initial Purchasers shall have received the favorable opinions, dated
as of the Closing Time, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to The Bank of
New York, as Property Trustee under the Declaration, and Guarantee Trustee under
the Capital Securities Guarantee Agreement, to the effect set forth as Exhibit C
hereto.
Opinion of Special Tax Counsel for the Offerors. At the
Closing Time, the Initial Purchasers shall have received an opinion, dated as of
the Closing Time, of Pitney, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, special tax counsel to the
Offerors, that (i) the Subordinated Debentures will be classified for United
States federal income tax purposes as indebtedness of the Company, (ii) the
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation and (iii)
although the discussion set forth in the Offering Memorandum under the heading
"Certain Federal Income Tax Consequences" does not purport to discuss all
possible United States federal income tax consequences of the purchase,
ownership and disposition of the Capital Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Capital Securities under current law. Such opinion may be
conditioned on, among other things, the initial and continuing accuracy of the
facts, financial and other information, covenants and representations set forth
in certificates of officers of the Company and other documents deemed necessary
for such opinion.
Opinion of Counsel for Initial Purchasers. At the Closing
Time, the Initial Purchasers shall have received the favorable opinion, dated as
of the Closing Time, of ▇▇▇▇▇ & Wood LLP, counsel for the Initial Purchasers,
with respect to the incorporation and legal existence of the Company, the Series
A Capital Securities, the Indenture, the Series A Capital Securities Guarantee
Agreement, this Agreement, the Registration Rights Agreement, the Offering
Memorandum and other related matters as the Initial Purchasers may require. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of Trustees
of the Trust, officers of the Company and its subsidiaries and certificates of
public officials.
Certificates. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust, or the Company and its subsidiary considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Initial Purchasers shall have received a certificate of any Chairman, any
Vice Chairman, the Chief Executive Officer, the President or any Executive Vice
President or Senior Vice President of the Company and of the chief financial
officer or the chief accounting officer of the Company and a certificate of an
Administrative Trustee of the Trust, dated as of the Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof were true and correct when
made and are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, and (iii) the Offerors have complied with
all agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Time.
Accountant's Comfort Letter. At the time of execution of
this Agreement, the Initial Purchasers shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance satisfactory to the
Initial Purchasers, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to initial purchasers with respect to
the financial statements and certain financial information contained in the
Offering Memorandum.
Bring-down Comfort Letter. At the Closing Time, the Initial
Purchasers shall have received from KPMG Peat Marwick LLP a letter, dated as of
the Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (g) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
Maintenance of Rating. At the Closing Time, the Series A
Capital Securities shall be rated at least "BB+" by Thomson Bank Watch and "B+"
by Standard & Poor's Rating Services (the "Rating Agencies") and the Trust shall
have delivered to the Initial Purchasers a letter dated the Closing Time, from
such rating agency, or other evidence satisfactory to the Initial Purchasers,
confirming that the Series A Capital Securities have such rating; and between
the date of this Agreement and the Closing Time, there shall not have occurred a
downgrading in the rating assigned to the Series A Capital Securities or any of
the Company's other debt securities by the Rating Agencies, and neither of the
Rating Agencies shall have publicly announced that it has under surveillance or
review, with possible negative implications, or that it otherwise has a negative
outlook with respect to, its rating of any of the Series A Capital Securities or
any of the Company's other debt securities.
Additional Documents. At the Closing Time, counsel for the
Initial Purchasers shall have been furnished with the Registration Rights
Agreement, executed by the Company and the Trust, and such other documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Capital Securities as herein contemplated, or
in order to evidence the accuracy of any of the representations or warranties of
the Offerors, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Offerors in connection with the issuance and sale
of the Capital Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Initial Purchasers and counsel for the
Initial Purchasers.
Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Initial Purchasers by written notice to the
Offerors 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 and except that Sections 7, 8 and 9 shall survive any such termination
and remain in full force and effect.
Subsequent Offers and Sales of the Capital Securities.
Offer and Sale Procedures. Each of the Initial Purchasers
and the Offerors hereby establish and agree to observe the following procedures
in connection with the offer and sale of the Capital Securities:
Offers and Sales only to Institutional Accredited Investors,
Qualified Institutional Buyers and Non-U.S. Persons. Offers and sales of the
Capital Securities will be made only by the Initial Purchasers or their
respective affiliates thereof qualified to do so in the jurisdictions in which
such offers or sales are made. Each such offer or sale shall only be made (A) to
persons whom the offeror or seller reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act)
("Qualified Institutional Buyers"), or (B) to a limited number of other
institutional accredited investors (as such term is defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D) that the offeror or seller reasonably believes
to be and, with respect to sales and deliveries, that are accredited investors
("Institutional Accredited Investors"), or (C) non-U.S. persons outside the
United States to whom the offeror or seller reasonably believes offers and sales
of the Capital Securities may be made in reliance upon Regulation S under the
1933 Act.
No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the ▇▇▇▇ ▇▇▇) will be used
in the United States in connection with the offering of the Capital Securities.
Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Capital Security acting as a fiduciary for one or more
third parties in connection with an offer and sale to such purchaser pursuant to
clause (a) above, each third party shall, in the judgment of the applicable
Initial Purchaser, be an Institutional Accredited Investor or a Qualified
Institutional Buyer or a non-U.S. person outside the United States.
Subsequent Purchaser Notification. Each Initial Purchaser
will take reasonable steps to inform, and cause each of its U.S. affiliates to
take reasonable steps to inform, persons acquiring Capital Securities from such
Initial Purchaser or affiliate, as the case may be, in the United States that
the Capital Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933 Act in
reliance on Rule 144A or in accordance with another exemption from registration
under the 1933 Act, as the case may be, and (C) may not be offered, sold or
otherwise transferred except (1) to the Company, (2) outside the United States
in accordance with Regulation S, or (3) inside the United States in accordance
with (x) Rule 144A to a person whom the seller reasonably believes is a
Qualified Institutional Buyer that is purchasing such Securities for its own
account or for the account of a Qualified Institutional Buyer to whom notice is
given that the offer, sale or transfer is being made in reliance on Rule 144A or
(y) an exemption from registration under the 1933 Act (including the exemption
provided by Rule 144), if available.
Minimum Amount. No sale of the Capital Securities to any one
Subsequent Purchaser will be in blocks of less than U.S. $100,000 liquidation
amount.
Restrictions on Transfer. The transfer restrictions and the
other provisions of the Declaration, including the legend required thereby,
shall apply to the Capital Securities except as otherwise agreed by the Offerors
and the Initial Purchasers. Following the sale of the Capital Securities by the
Initial Purchasers to Subsequent Purchasers pursuant to the terms hereof, the
Initial Purchasers shall not be liable or responsible to the Offerors for any
losses, damages or liabilities suffered or incurred by the Offerors, including
any losses, damages or liabilities under the 1933 Act, arising from or relating
to any resale or transfer of any Capital Security.
Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each purchaser of the Capital Securities from such Initial Purchaser,
in connection with their original distribution of the Capital Securities, a copy
of the Offering Memorandum, as amended and supplemented at the date of such
delivery.
Covenants of the Offerors. Each of the Offerors, jointly and
severally, covenant with each Initial Purchaser as follows:
Due Diligence. In connection with the original distribution
of the Capital Securities, the Offerors agree that, prior to any offer or sale
of the Capital Securities by the Initial Purchasers, the Initial Purchasers and
counsel for the Initial Purchasers shall have the right to make reasonable
inquiries into the business of the Trust, the Company and its subsidiaries. The
Offerors also agree to provide information to each prospective Subsequent
Purchaser of Capital Securities who so requests concerning the Trust, the
Company and its subsidiaries (to the extent that such information is available
or can be acquired and made available to prospective Subsequent Purchasers
without unreasonable effort or expense and to the extent the provision thereof
is not prohibited by applicable law) and the terms and conditions of the
offering of the Securities, as provided in the Offering Memorandum.
Integration. The Offerors agree that they will not and will
cause their Affiliates not to make any offer or sale of securities of the
Offerors of any class if, as a result of the doctrine of "integration" referred
to in Rule 502 under the 1933 Act, such offer or sale would render invalid (for
the purpose of (i) the sale of the Capital Securities by the Trust to the
Initial Purchasers, (ii) the resale of the Capital Securities by the Initial
Purchasers to Subsequent Purchasers or (iii) the resale of the Capital
Securities by such Subsequent Purchasers to others) the exemption from the
registration requirements of the 1933 Act provided by Section 4(2) thereof or by
Rule 144A or by Regulation S thereunder or otherwise.
Rule 144A Information. The Company agrees that, in order to
render the Capital Securities eligible for resale pursuant to Rule 144A under
the 1933 Act, while any of the Capital Securities remain outstanding, the
Company will make available, upon request, to any holder of Capital Securities
or prospective purchasers of Capital Securities the information specified in
Rule 144A(d)(4), unless such information is furnished to the Commission pursuant
to Section 13 or 15(d) of the 1934 Act (such information, whether made available
to holders or prospective purchasers or furnished to the Commission, is herein
referred to as "Additional Information").
Restriction on Repurchases. Until the expiration of three
years (or such shorter period as may hereafter be referred to in Rule 144(k) (or
similar successor rule)) after the original issuance of the Capital Securities,
the Offerors will not, and will cause their Affiliates not to, purchase or agree
to purchase or otherwise acquire any Capital Securities which are "restricted
securities" (as such term is defined under Rule 144(a)(3) under the 1933 Act),
whether as beneficial owner or otherwise unless, immediately upon any such
purchase, the Offerors or any Affiliate shall submit such securities to the
Trustee for cancellation.
Resale Pursuant to Rule 903 of Regulation S or Rule 144A.
Each Initial Purchaser understands that the Capital Securities have not been and
will not be registered under the 1933 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 Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser, jointly
and severally, represent and agree, that, except as permitted below, they have
offered and sold Capital Securities and will offer and sell Capital Securities
(i) as part of their distribution at any time and (ii) otherwise until forty
days after the later of the date upon which the offering of the Capital
Securities commences and the Closing Time, only in accordance with Rule 903 of
Regulation S or Rule 144A under the 1933 Act or to Institutional Accredited
Investors. Accordingly, neither the Initial Purchasers, their Affiliates nor any
persons acting on their behalf have engaged or will engage in any directed
selling efforts with respect to Capital Securities, and the Initial Purchasers,
their Affiliates and any person acting on their behalf have complied and will
comply with the offering restriction requirements of Regulation S. Each Initial
Purchaser agrees that, at or prior to confirmation of a sale of Capital
Securities (other than a sale of Capital Securities pursuant to Rule 144A or to
Institutional Accredited Investors), they will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from them or through them during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been
registered under the United States Securities Act of
1933 (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 (i) as part of
their distribution at any time and (ii) otherwise
until forty days after the later of the date upon
which the offering of the Securities commenced and
the date of closing, except in either case in
accordance with Regulation S or Rule 144A under the
Securities Act. Terms used above have the meaning
given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
Each Initial Purchaser severally represents and agrees that they have not
entered and will not enter into any contractual arrangements with respect to the
distribution of the Capital Securities, except with their respective affiliates
or with the prior written consent of the Offerors.
Compliance with United Kingdom Law. Each Initial Purchaser
severally represents and agrees that (i) they have not offered or sold and,
prior to the expiration of the period of six months from the date hereof, will
not offer or sell any Capital 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; (ii) they have only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by them in connection with the issue of the Capital Securities to a
person who is of a kind described in Article 11(3) of the Financial Services ▇▇▇
▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on, and (iii) it has
complied and will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to any Capital
Securities in, from or otherwise involving the United Kingdom.
Compliance with Other Laws. Each Initial Purchaser
acknowledges that no action has been taken to permit a public offering of the
Capital Securities in any jurisdiction outside of the United States where action
would be required for such purpose. Each Initial Purchaser agrees that it will
not offer or sell any Capital Securities in any jurisdiction outside of the
United States except under circumstances that will result in compliance with all
applicable laws thereof.
Indemnification.
Indemnification of Initial Purchasers. The Offerors agree to
jointly and severally indemnify and hold harmless each Initial Purchaser and
each person, if any, who controls any Initial Purchaser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact included in the Final Offering Memorandum
(or any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Offerors; and
against any and all expense whatsoever, as incurred
(including, subject to the third sentence of Section 7(c) hereof, the fees and
disbursements of counsel chosen by the Initial Purchasers), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the extent (i) arising
out of any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished to
the Offerors by any Initial Purchaser through KBW expressly for use in the
Offering Memorandum (or any amendment thereto) or (ii) resulting from the fact
that one or more Initial Purchasers sold Capital Securities to a person to whom
there was not sent or given a copy of the Preliminary Offering Memorandum or of
the Final Offering Memorandum as then amended or supplemented (excluding
documents incorporated by reference) if the Offerors previously have furnished
copies thereof to such Initial Purchaser.
Indemnification of Offerors, Directors and Officers. Each
Initial Purchaser agrees, severally, to indemnify and hold harmless the Company,
its directors and officers, the Trust, each of the Administrative Trustees and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Offering Memorandum in reliance upon and in conformity with written information
furnished to the Company by such Initial Purchaser through KBW expressly for use
in the Offering Memorandum.
Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification could be sought under this Section 7 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in
Section 7 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Initial Purchasers on the other hand from the offering of the
Capital Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Offerors, on the one hand, and of the
Initial Purchasers, on the other hand, in connection with the statements or
omissions which resulted in such losses liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Capital Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Initial
Purchasers, bear to the aggregate initial offering price of the Capital
Securities.
The relative fault of the Offerors, on the one hand, and the Initial
Purchasers, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statements of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Offerors 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 Offerors and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 8 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 which does not take account
of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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 Capital Securities purchased by it and distributed to
the public were offered to the public exceeds the amount of any damages which
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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each officer and director of the Company, each Administrative
Trustee of the Trust, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company and the Trust. The Initial
Purchasers' obligations to contribute pursuant to this Section 8 are several in
proportion to the number of Capital Securities set forth opposite their
respective names in Schedule A hereto and not joint.
Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or trustees of the Trust
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Initial Purchaser or
controlling person, or by or on behalf of the Trust or the Company, and shall
survive delivery of the Capital Securities to the Initial Purchasers.
Termination of Agreement.
The Initial Purchasers may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Offering Memorandum, any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Trust or Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere, any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Initial Purchasers, impracticable to
market the Capital Securities or to enforce contracts for the sale of the
Capital Securities, or (iii) if trading in any securities of the Company has
been suspended or limited by the Commission, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the
over-the-counter market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal, New York or New Jersey authorities.
If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 7 and
8 shall survive such termination and remain in full force and effect.
SECTION 11. Default by One or More of the Initial Purchasers. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Initial Purchasers shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other Initial Purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Initial Purchasers shall
not have completed such arrangements within such 24-hour period, then this
Agreement shall terminate without liability on the part of any non-defaulting
Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Initial Purchasers 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 Offering Memorandum or in any other
documents or arrangements. As used herein, the term "Initial Purchaser" includes
any person substituted for an Initial Purchaser under this Section 11.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Initial Purchasers c/o Keefe, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.; notices
to the Offerors shall be directed to United National Bancorp, ▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇. with a copy to Pitney, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Initial Purchasers and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchasers and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers and the
Offerors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Initial Purchasers shall be deemed to be a successor by reason merely of
such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Offerors in accordance with its terms.
The execution and delivery of this Agreement by the Offerors and its acceptance,
execution and delivery by or on behalf of the Initial Purchasers may be
evidenced by an exchange of telecopied or other written communications.
Very truly yours,
United National Bancorp
By:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
& Corporate Secretary
UNB Capital Trust I
By: United National Bancorp, as Sponsor
By:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Administrative Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇, ▇▇▇▇ & CO.
By: ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
By:/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE A
Number of Capital
Name of Initial Purchasers Securities
-------------------------- -----------------
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. .............................. 10,000
▇▇▇▇, ▇▇▇▇ & Co. ........................................... 10,000
Total .................................................... 20,000
EXHIBIT A
Opinion of Pitney, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, Counsel for the Company to the
effect that:
EXHIBIT B
Form of Opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, Special Delaware
Counsel to the Offerors.
EXHIBIT C
Form of Opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
