Exhibit 1.2
FIDELITY CAPITAL TRUST I
(a Delaware business trust)
2,500,000 Preferred Securities
___% Cumulative Trust Preferred Securities
(Liquidation Acount $10 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
___________, 1997
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Fidelity Capital Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and Fidelity Bankshares, Inc., a Delaware corporation
(the "Company") as depositor of the Trust and as guarantor (hereafter the Trust
and the Company are referred to collectively as the "Offerors"), hereby confirm
their agreement (the "Agreement") with ▇▇▇▇ ▇▇▇▇ & Co., Inc. (the
"Underwriter"), with respect to the issue and sale by the Trust and the purchase
by the Underwriter of 2,500,000 (the "Initial Securities") of the Trust's ___%
Cumulative Trust Preferred Securities (the "Preferred Securities"). The Trust
and the Company also propose to issue and sell to the Underwriter, at the
Underwriter's option, up to an additional 375,000 Preferred Securities (the
"Option Securities") as set forth herein. The term "Preferred Securities" as
used herein, unless indicated otherwise, shall mean the Initial Securities and
the Option Securities.
The Preferred Securities and the Common Securities (as defined herein)
are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement dated as of ___________, 1997 (the "Trust Agreement"), among the
Company, as depositor, and Bank of New York ("Trust Company"), a New York
banking corporation, as property trustee ("Property Trustee") and Bank of New
York (Delaware), as Delaware trustee ("Delaware Trustee") and ___________
(the "Administrative Trustees" and together with the Property Trustee and the
Delaware Trustee, the "Trustees") and the holders from time to time of undivided
interests in the assets of the Trust. The Preferred Securities will be
guaranteed by the Company, on a subordinated basis and subject to certain
limitations, with respect to distributions and payments upon liquidation,
redemption or otherwise (the "Guarantee") pursuant to the Preferred Securities
Guarantee Agreement to be dated as of ___________, 1997 (the "Guarantee
Agreement") between the Company and the Trust Company, as guarantee trustee (the
"Guarantee Trustee"). The assets of the Trust will consist of ___% junior
subordinated debentures due ___________, 2028 (the "Junior Subordinated
Debentures") of the Company which will be issued under the Indenture to be dated
as of ___________, 1997 (the "Indenture"), between the Company and the Trust
Company, as trustee (the "Indenture Trustee"). The Company has agreed to pay
all costs, expenses and liabilities of the Trust payable to third parties, with
certain exceptions, pursuant to the Agreement as to Expenses and Liabilities,
dated as of ___________, 1997, between the Company and the Trust (the "Expense
Agreement"). Under certain circumstances, the Junior Subordinated Debentures
will be distributable to the holders of undivided beneficial interests in the
assets of the Trust. The entire proceeds from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of the Trust's common securities (the "Common Securities"), and
will be used by the Trust to purchase an equivalent amount of the Junior
Subordinated Debentures.
The initial public offering price for the Preferred Securities, the
purchase price to be paid by the Underwriter for the Preferred Securities, the
commission per Preferred Security to be paid by the Company to the Underwriter
and the rate of interest to be paid on the Preferred Securities shall be agreed
upon by the Company and the Underwriter, and such agreement shall be set forth
in a separate written instrument substantially in the form of Exhibit A hereto
(the "Price Determination Agreement"). The Price Determination Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Underwriter and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-2 (File Nos.
333-___________ and 333-___________-01) covering the registration of the
Preferred Securities, the Guarantee and the Junior Subordinated Debentures under
the Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto and
the documents incorporated by reference therein pursuant to Item 12 of Form S-2
under the 1933 Act, at the time it becomes effective, is herein called the
"Registration Statement", and the prospectus, including the
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documents incorporated by reference therein pursuant to Item 12 of Form S-2
under the 1933 Act, included in the Registration Statement at the time it
becomes effective is herein called the "Prospectus," except that if any revised
prospectus provided to the Underwriter by the Company for use in connection with
the offering of the Preferred Securities differs from the prospectus included in
the Registration Statement at the time it becomes effective (whether or not such
prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first furnished to the Underwriter for such use.
The Company understands that the Underwriter proposes to make a public
offering of the Preferred Securities (the "Offering") as soon as possible after
the Registration Statement becomes effective. The Underwriter may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Preferred Securities.
Section 1. Representations and Warranties.
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(a) The Offerors jointly and severally represent and warrant to and
agree with the Underwriter that:
(i) The Company meets the requirements for use of Form S-2 under
the 1933 Act and when the Registration Statement on such form shall become
effective and at all times subsequent thereto up to the Closing Time
referred to below and with respect to Option Securities, up to the Date of
Delivery referred to below, (A) the Registration Statement and any
amendments and supplements thereto will comply in all material respects
with the requirements of the 1933 Act and the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"); (B) neither the
Registration Statement nor any amendment or supplement thereto will contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and (C) neither the Prospectus nor any amendment or supplement thereto will
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that this
representation and warranty does not apply to statements or omissions made
in reliance upon and in conformity with information furnished in writing to
the Offerors by the Underwriter expressly for use in the Registration
Statement or the Prospectus, or any information contained in any Form T-1
which is an exhibit to the Registration Statement. The statements contained
under the caption "Underwriting" in the Prospectus constitute the only
information furnished to the Offerors in writing by the Underwriter
expressly for use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-2 under the 1933 Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of
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1934, as amended (the "1934 Act"), and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
and with the other information in the Prospectus, at the time the
Registration Statement becomes effective and at all times subsequent
thereto up to the Closing Time, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, in each case after excluding any statement that does not
constitute a part of the Registration Statement or the Prospectus pursuant
to Rule 412 of the 1933 Act Regulations.
(iii) Deloitte & Touche LLP, who are reporting upon the audited
financial statements included or incorporated by reference in the
Registration Statement, are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and delivered
by the Offerors and, when duly executed by the Underwriter, will constitute
the valid and binding agreement of the Offerors enforceable against the
Offerors in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, or reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles. The Guarantee Agreement, the Junior
Subordinated Debentures, the Trust Agreement, the Expense Agreement and the
Indenture have each been duly authorized and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the
Guarantee Trustee, in the case of the Trust Agreement, by the Trustees, and
in the case of the Indenture, by the Indenture Trustee, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their respective terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, or reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or
general equitable principles; the Junior Subordinated Debentures are
entitled to the benefits of the Indenture; and the Guarantee Agreement, the
Junior Subordinated Debentures, the Trust Agreement, the Expense Agreement
and the Indenture conform in all material respects to the descriptions
thereof in the Prospectus. The Trust Agreement, the Guarantee Agreement,
and the Indenture have been duly qualified under the Trust Indenture Act.
(v) The consolidated financial statements, audited and unaudited
(including the notes thereto), included or incorporated by reference in the
Registration Statement present fairly the consolidated financial position
of the Company and its subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and its
subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
otherwise stated therein. The financial statement schedules, if any,
included in the Registration Statement present fairly the information
required to be stated therein. The selected financial, pro forma and
statistical data included in the Prospectus are accurate in all material
respects and present fairly the information
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shown therein and have been compiled on a basis consistent with that of the
audited and unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus. Each
subsidiary of the Company is an entity duly organized, validly existing and
in good standing under the laws of its respective jurisdiction of
organization with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business. The Company and
each of its subsidiaries is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company and
its subsidiaries, considered as one enterprise.
(vii) The Company is duly registered with the Office of Thrift
Supervision as a savings and loan holding company under the Home Owners'
Loan Act of 1933, as amended; each subsidiary of the Company that conducts
business as a bank is duly authorized to conduct such business in each
jurisdiction in which such business is currently conducted; and the deposit
accounts of Fidelity Federal Savings Bank of Florida (the "Bank") are
insured by the Savings Association Insurance Fund of the Federal Deposit
Insurance Corporation ("FDIC"), up to the maximum allowable limits thereof.
The Offerors have all such power, authority, authorization, approvals and
orders as may be required to enter into this Agreement, to carry out the
provisions and conditions hereof and to issue and sell the Preferred
Securities.
(viii) The Bank is a federally chartered savings bank duly organized,
validly existing and in good standing under the laws of the United States
of America with corporate power and authority under such laws to own, lease
and operate its properties and conduct its business; the Bank is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property of
a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered as
one enterprise. All of the outstanding shares of capital stock of the Bank
have been duly authorized and validly issued and are fully paid and non-
assessable and are owned by the Company directly, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of
any kind. All of the outstanding shares of capital stock of the Company's
subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by either
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the Company or the Bank directly, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind.
(ix) Except for the Bank, the Company does not have any "significant
subsidiaries" as defined in Rule 1-02 of Regulation S-X under the ▇▇▇▇ ▇▇▇.
(x) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Prospectus under the caption
"Capitalization".
(xi) The Preferred Securities have been duly and validly
authorized by the Trust for issuance and sale to the Underwriter pursuant
to this Agreement and, when executed and authenticated in accordance with
the terms of the Trust Agreement and delivered by the Trust to the
Underwriter pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and non-assessable
and will constitute valid and legally binding obligations of the Trust
enforceable in accordance with their terms and entitled to the benefits
provided by the Trust Agreement. The Trust Agreement has been duly
authorized and, when executed by the Property Trustee, the Delaware Trustee
and the Administrative Trustees of the Trust and delivered by the Trust,
will have been duly executed and delivered by the Trust and will constitute
the valid and legally binding instrument of the Trust, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting enforcement
of creditors' rights generally or by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law). The Preferred Securities conform, in all material respects, to the
statements relating thereto contained in the Prospectus and such
description conforms, in all material respects, to the rights set forth in
the instruments defining the same; the holders of the Preferred Securities
(the "Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; and
the issuance of the Preferred Securities is not subject to the preemptive
or other similar rights of any securityholder of the Company.
(xii) The Common Securities have been duly and validly authorized by
the Trust and upon delivery by the Trust to the Company against payment
therefor as described in the Prospectus, will be duly and validly issued
and fully paid undivided beneficial interests in the assets of the Trust
and will conform, in all material respects, to the description thereof
contained in the Prospectus; 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 equity.
(xiii) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Act with the
power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus, and the Trust
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has conducted no business to date, and it will conduct no business in the
future that would be inconsistent with the description of the Trust set
forth in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust Agreement and
the agreements and instruments contemplated by the Trust Agreement or
described in the Prospectus; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Prospectus; and the
Trust is not a party to or subject to any action, suit or proceeding of any
nature.
(xiv) The issuance and sale of the Preferred Securities and the
Common Securities by the Trust, the compliance by the Trust with all of the
provisions of this Agreement, the purchase of the Junior Subordinated
Debentures by the Trust, and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, loan
agreement, mortgage, deed of trust or other agreement or instrument to
which the Trust is a party or by which the Trust is bound or to which any
of the property or assets of the Trust is subject, nor will such action
result in any violation of the provisions of the Trust Agreement or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust or any of its properties,
except in any case for such conflicts, breaches, defaults or violations
that would not have a material adverse effect on the condition (financial
or otherwise), earnings, business affairs, assets or business prospects of
the Company and its subsidiaries, considered as one enterprise; and no
consent, approval, authorization, order, license, certificate, permit,
registration or qualification of or with any such court or other
governmental agency or body is required to be obtained by the Trust for the
issue and sale of the Preferred Securities and the Common Securities by the
Trust, the purchase of the Junior Subordinated Debentures by the Trust or
the consummation by the Trust of the transactions contemplated by this
Agreement and the Trust Agreement, except for such consents, approvals,
authorizations, licenses, certificates, permits, registrations or
qualifications as have already been obtained, or as may be required under
the 1933 Act or the 1933 Act Regulations, 1934 Act or 1934 Act Regulations,
state securities laws or under the Trust Indenture Act of 1939, as amended
("TIA").
The issuance by the Company of the Guarantee and the Junior
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement, the execution, delivery and performance by
the Company of the Trust Agreement, the Junior Subordinated Debentures, the
Guarantee Agreement, the Expense Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture, loan
agreement, mortgage, deed of trust, or other material agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or by-laws of the
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Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, any of its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, license,
certificate, permit, registration or qualification of or with any such
court or other governmental agency or body is required for the issue of the
Guarantee and the Junior Subordinated Debentures or the consummation by the
Company of the other transactions contemplated by this Agreement, except
for such consents, approvals, authorizations, licenses, certificates,
permits, registrations or qualifications as have already been obtained, or
as may be required under the 1933 Act or the 1933 Act Regulations, 1934 Act
or 1934 Act Regulations, state securities laws or under the TIA.
(xv) The Trust is not, and after giving effect to the offering and
sale of the Preferred Securities will not be, an "investment company," or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(xvi) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and non-
assessable, and none of the outstanding shares of capital stock was issued
in violation of the preemptive rights of any stockholder of the Company.
(xvii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has not been (A) any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any subsidiary, other than
in the ordinary course of business, that is material to the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock. Neither the Company, the Bank, nor any other subsidiary has
any material liability of any nature, contingent or otherwise, except as
set forth in the Prospectus.
(xviii) Neither the Company, the Bank nor any other subsidiary is in
violation of any provision of its certificate of incorporation, charter or
by-laws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties may be subject, except for such defaults that would not have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company and
its subsidiaries, considered as one enterprise.
(xix) Except as disclosed in the Prospectus, there is no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign,
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now pending or, to the knowledge of the Company, threatened against the
Company, the Bank or any other subsidiary that is required to be disclosed
in the Prospectus or that could reasonably be expected to result in any
material adverse change in the condition (financial or otherwise),
earnings, business affairs, assets or business prospects of the Company and
its subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the properties or assets of the
Company and its subsidiaries, considered as one enterprise, or that could
reasonably be expected to materially and adversely affect the consummation
of the transactions contemplated in this Agreement; all pending legal or
governmental proceedings to which the Company, the Bank or any other
subsidiary is a party that are not described in the Prospectus, including
ordinary routine litigation incidental to its business, if decided in a
manner adverse to the Company, would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(xx) There are no material contracts or documents of a character
required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are not
described and filed as required.
(xxi) The Company and its subsidiaries, including the Bank, each has
good and marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as (A) are described in the
Prospectus or (B) are neither material in amount nor materially significant
in relation to the business of the Company and its subsidiaries, considered
as one enterprise; all of the leases and subleases material to the business
of the Company and its subsidiaries, considered as one enterprise, and
under which the Company, the Bank or any other subsidiary holds properties
described in the Prospectus, are in full force and effect, and neither the
Company, the Bank nor any other subsidiary has any notice of any material
claim that has been asserted by anyone adverse to the rights of the
Company, the Bank or any other subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such
corporation to the continued possession of the leased or subleased premises
under any such lease or sublease.
(xxii) Each of the Company and its subsidiaries, including the Bank,
owns, possesses or has obtained all material governmental licenses,
permits, certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and neither
the Company, the Bank nor any other subsidiary has received any notice of
any restriction upon, or any notice of proceedings relating to revocation
or modification of, any such licenses, permits, certificates, consents,
orders, approvals or authorizations.
(xxiii) No labor problem exists with the employees of the Company or
with employees of the Bank or any other subsidiary, or to the best
knowledge of the Company, is imminent that could materially adversely
affect the Company and its subsidiaries, considered
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as one enterprise, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its, the Bank's or any other
subsidiary's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(xxiv) Except as disclosed in the Prospectus, there are no persons
with registration or other similar rights to have any securities of the
Company registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
(xxv) Except as disclosed in the Prospectus, the Company and its
subsidiaries, including the Bank, own or possess all patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets
or other unpatented and/or unpatentable proprietary or confidential
information systems or procedures), trademarks, servicemarks and tradenames
(collectively, "patent and proprietary rights") currently employed by them
in connection with the business now operated by them except where the
failure to so own, possess or acquire such patent and proprietary rights
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries considered as one enterprise, and neither the
Company, the Bank nor any other subsidiary has received any notice nor is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any patent or proprietary rights, and which
infringement or conflict (if the subject of any unfavorable decision, rule
and refinement, singly or in the aggregate) could reasonably be expected to
result in any material adverse change in the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xxvi) The Company and each subsidiary of the Company have filed all
Federal, state and local income, franchise or other tax returns required to
be filed and have made timely payments of all taxes due and payable in
respect of such returns and no material deficiency has been asserted with
respect thereto by any taxing authority.
(xxvii) The Company has filed with the NASD all documents and notices
required by the NASD of companies that have issued securities that are
listed or traded on The Nasdaq Stock Market, Inc. (the "Nasdaq Stock
Market").
(xxviii) Neither the Trust, the Company nor any subsidiary has taken
or will take, directly or indirectly, any action designed to cause or
result in, or which has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation, under the Exchange Act or
otherwise, of the price of the Preferred Securities.
(xxix) Neither the Company, the Bank nor any other subsidiary is or
has been (by virtue of any action, omission to act, contract to which it is
a party or by which it is bound,
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or any occurrence or state of facts whatsoever) in violation of any
applicable foreign, Federal, state, municipal, or local statutes, laws,
ordinances, rules, regulations and/or orders issued pursuant to foreign,
federal, state, municipal, or local statutes, laws, ordinances, rules, or
regulations (including those relating to any aspect of banking, savings
bank holding companies, environmental protection, occupational safety and
health, and equal employment practices) heretofore or currently in effect,
except such violation that has been fully cured or satisfied without
recourse or that is not reasonably likely to have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xxx) Neither the Company, the Bank nor any other subsidiary has any
agreement or understanding with any entity concerning the future
acquisition by the Company or the Bank of a controlling interest in any
entity that is required by the 1933 Act or the 1933 Act Regulations to be
disclosed by the Company that is not disclosed in the Prospectus; neither
the Company, the Bank nor any other subsidiary has any agreement or
understanding with any entity concerning the future acquisition of a
controlling interest in the Company, the Bank or any other subsidiary by
any entity that is required by the 1933 Act or the 1933 Act Regulations to
be disclosed by the Company that is not disclosed in the Prospectus.
(b) Any certificate signed by any authorized officer of the Company or
the Bank and delivered to the Underwriter or to counsel for the Underwriter
pursuant to this Agreement shall be deemed a representation and warranty by the
Company to the Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriter; Closing.
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(a) 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 the Underwriter, and the Underwriter agrees to purchase from
the Trust, 2,500,000 Initial Securities at the purchase price and terms set
forth herein and in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
hereby grants an option to the Underwriter to purchase up to an additional
375,000 Preferred Securities in accordance with the terms set forth herein and
in the Price Determination Agreement. The option hereby granted will expire at
5:00 p.m. on the 30th day after the date the Registration Statement is declared
effective by the Commission (or at 5:00 p.m. on the next business day if such
30th day is not a business day) and may be exercised, on one occasion only,
solely for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice by you to the Company setting forth the number of Option Securities as to
which the Underwriter is exercising the option and the time, date and place of
payment and delivery for the Option Securities. Such time and date of delivery
(the "Option Closing Date") shall be determined by the Underwriter but shall not
be later than five full business days after the exercise of said option, nor
11
in any event prior to Closing Time, as hereinafter defined, nor earlier than the
second business day after the date on which the notice of the exercise of the
option shall have been given.
(b) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the offices of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ("▇▇▇▇ ▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, or at such other place as shall be agreed upon by the Company and the
Underwriter, at 9:30 a.m. on the third full business day after the effective
date of the Registration Statement, or at such other time not earlier than three
nor more than ten full business days thereafter as you and the Company shall
determine (such date and time of payment and delivery being herein called the
"Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriter, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned office of ▇▇▇▇ ▇▇▇▇▇▇, or at such other place as shall be agreed
upon by the Company and the Underwriter, on the Option Closing Date as specified
in the notice from the Underwriter to the Company. Payment for the Initial
Securities and the Option Securities, if any, shall be made to the Company by
wire transfer of immediately available funds, against delivery to the
Underwriter for the account of the Underwriter of Preferred Securities to be
purchased by it.
(c) The Initial Securities shall be issued in the form of one or more
fully registered global securities (the "Global Securities") in book-entry form
in such denominations and registered in the name of the nominee of The
Depository Trust Company (the "DTC") or in such names as the Underwriter may
request in writing at least one business day before the Closing Date or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available for examination by the Underwriter and counsel to the Underwriter not
later than 10:00 A.M. on the business day prior to the Closing Time or the
Option Closing Date, as the case may be.
Section 3. Certain Covenants of the Offerors. Each of the Offerors
----------------------------------
covenants jointly and severally with the Underwriter as follows:
(a) The Offerors will use their best efforts to cause the Registration
Statement to become effective and will notify the Underwriter immediately, and
confirm the notice in writing, (i) when the Registration Statement, or any post-
effective amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request of the Commission to amend the Registration Statement or amend or
supplement the Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Preferred Securities or capital stock, for offering or sale in any jurisdiction,
or of the institution or threatening of any proceedings for any of such
purposes. The Offerors will use every reasonable effort to prevent the issuance
of any such stop order or of any order preventing or suspending such use and, if
any such order is issued, to obtain the lifting thereof at the earliest possible
moment.
12
(b) The Offerors will not at any time file or make any amendment to
the Registration Statement, or any amendment or supplement if the Offerors have
elected to rely upon Rule 430A, to the Prospectus (including documents
incorporated by reference into such prospectus or to the Prospectus) of which
the Underwriter shall not have previously been advised and have previously been
furnished a copy, or to which the Underwriter or counsel for the Underwriter
shall reasonably object.
(c) The Offerors have furnished or will furnish to you as many signed
and conformed copies of the Registration Statement as originally filed and of
each amendment thereto, whether filed before or after the Registration Statement
becomes effective, copies of all exhibits and documents filed therewith
(including documents incorporated by reference into the Prospectus pursuant to
Item 12 of Form S-2 under the ▇▇▇▇ ▇▇▇) and signed copies of all consents and
certificates of experts as you may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriter may reasonably request, and the Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will deliver
or cause to be delivered to the Underwriter, without charge, as soon as the
Registration Statement shall have become effective (or, if the Offerors have
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933
Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations,
so as to permit the completion of the distribution of the Preferred Securities
as contemplated in this Agreement and in the Prospectus. If, at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Preferred Securities, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriter or counsel for the Offerors, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the
Underwriter, to qualify the Preferred Securities and the Junior Subordinated
Debentures, for offering and sale
13
under the applicable securities laws of such states and other jurisdictions as
the Underwriter may designate and to maintain such qualifications in effect for
a period of not less than one year from the effective date of the Registration
Statement; provided, however, that the Company shall not be obligated to file
------------------
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Preferred Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of
Rule 158) to its securityholders, the Underwriter and the Securityholders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement of the Company and its subsidiaries (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a period of at least 12 months beginning after the effective date of
the Registration Statement but not later than the first day of the Company's
fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the Preferred
Securities, combined with the entire proceeds from the issuance by the Trust to
the Company of the Trust's Common Securities, to purchase an equivalent amount
of Junior Subordinated Debentures. The Company and the Bank will use the net
proceeds received by them from the sale of the Junior Subordinated Debentures in
the manner specified in the Prospectus under the caption "Use of Proceeds".
(i) The Offerors, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act
subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company
will furnish to the Underwriter copies of all annual reports, quarterly reports
and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the Commission, and such other
documents, reports, Proxy Statements and information as shall be furnished by
the Company to its stockholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all documents
and notices required by the Nasdaq Stock Market of companies that have issued
securities that are traded on the National Market, in the over-the-counter
market and quotations for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay the legal fees and related filing fees of
counsel to the Underwriter to prepare one or more "blue sky" surveys (each, a
"Blue Sky Survey") for use in connection with the offering of the Preferred
Securities as contemplated by the Prospectus and a
14
copy of such Blue Sky Survey or surveys shall be delivered to each of the
Company and the Underwriter.
(m) If, at the time the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then the Offerors will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule 424(b),
copies of an amended Prospectus, or, if required by such Rule 430A, a post-
effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of
the Preferred Securities, prepare and distribute to the Underwriter and counsel
to the Underwriter, copies of the documents used in connection with the issuance
of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or thirty
(30) days after the date of this Agreement, whichever occurs first, incur any
material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K under the 1933 Act, except as
contemplated by the Prospectus.
(p) During a period of thirty (30) days from the date of the
Prospectus, neither the Trust nor the Company will, without the prior written
consent of the Underwriter, directly or indirectly, offer, sell, offer to sell,
or otherwise dispose of any Preferred Securities, any other beneficial interests
in the assets of the Trust, or any preferred securities or other securities of
the Trust or the Company that are substantially similar to the Preferred
Securities, including any guarantee of such securities. The foregoing sentence
shall not apply to any of the Preferred Securities to be sold hereunder.
Section 4. Payment of Expenses.
--------------------
(a) The Company will pay and bear all costs and expenses incident to
the performance of its and the Trust's obligations under this Agreement,
including (a) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits), as originally filed and as
amended, the preliminary prospectuses and the Prospectus and any amendments or
supplements thereto, and the cost of furnishing copies thereof to the
Underwriter, (b) the preparation, printing and distribution of this Agreement,
the Preferred Securities and the Blue Sky Survey, (c) the issuance and delivery
of the Preferred Securities to the Underwriter, including any transfer taxes
payable upon the sale of the Preferred Securities to the Underwriter, (d) the
fees and disbursements of the Company's counsel and accountants, (e) NASD filing
fees, (f) fees and disbursements of counsel to the Underwriter in connection
with the Blue Sky Survey, (g) the qualification of the Preferred Securities
under the applicable securities laws in accordance with Section 3(f) and any
filing fee for review of the offering with the NASD, (h) the legal fees and
expenses of the Underwriter's counsel (such counsel's fees shall not exceed
$65,000 exclusive of
15
out-of-pocket expenses of counsel) and general out-of-pocket expenses of the
Underwriter not to exceed $15,000, (i) the fees and expenses of the Indenture
Trustee, including the fees and disbursements of counsel for the Indenture
Trustee, in connection with the Indenture and the Junior Subordinated
Debentures; (j) the fees and expenses of the Property Trustee and Delaware
Trustee, including the fees and disbursements of counsel for the Property
Trustee and the Delaware Trustee, in connection with the Trust Agreement and the
Certificate of Trust, and (k) all other costs incident to the performance of the
Offerors' obligations hereunder.
If (i) the Closing Time does not occur on or before June 30, 1998,
(ii) the Company abandons or terminates the Offering, or (iii) this Agreement is
terminated by the Underwriter in accordance with the provisions of Section 5 or
11(a), the Company shall reimburse the Underwriter for its reasonable out-of-
pocket expenses, as set forth in this Section 4, including the reasonable fees
and disbursements of counsel for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. The obligations
---------------------------------------
of the Underwriter to purchase and pay for the Preferred Securities that it has
agreed to purchase pursuant to this Agreement are subject to the accuracy of the
representations and warranties of the Offerors contained herein or in
certificates of the officers or trustees of the Offerors or any subsidiary
delivered pursuant to the provisions hereof, to the performance by the Offerors
of their obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date of this Agreement or, with your consent, at a later
time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing; at the Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriter's knowledge or the knowledge of the Offerors,
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriter. If the Offerors have elected to
rely upon Rule 430A, a prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, you shall have received:
(i) The favorable opinion, dated as of Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇,
special counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriter, substantially in the form set
forth in Exhibit B.
(ii) The favorable opinion, dated as of Closing Time, of Morris,
Nichols, Arsht & ▇▇▇▇▇▇▇, special Delaware counsel for the Offerors, in
form and substance satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit C.
16
(iii) The favorable opinion, dated as of Closing Time, of
___________, counsel for the Indenture Trustee and the Delaware Trustee, in
form and substance satisfactory to counsel for the Underwriter,
substantially in the form set forth in Exhibit D.
(iv) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., counsel for the
Underwriter, in form and substance satisfactory to the Underwriter.
In giving such opinions, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States, upon opinions of other counsel, who shall be counsel satisfactory to
counsel for the Underwriter (the Underwriter agrees and acknowledges that ▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A. will rely
on the opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ with respect to matters of
Delaware law), in which case the opinion shall state that counsel believes that
you and your counsel are entitled to so rely. 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 officers of the Company, the Bank
and the Trust and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date, (i) the
Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, the Offerors shall have complied in all material respects with Rule
430A (if they shall have elected to rely thereon) and neither the Registration
Statement nor the Prospectus, as they may then be amended or supplemented, shall
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of business, (iii)
no action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Offerors, threatened against the Company or any subsidiary or
the Trust that would be required to be set forth in the Prospectus other than as
set forth therein and no proceedings shall be pending or, to the knowledge of
the Offerors, threatened against the Offerors or any subsidiary before or by any
federal, state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding could reasonably be expected to
materially adversely affect the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, other than as set forth in the
Prospectus, (iv) each of the Offerors shall have complied, in all material
respects, with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time or Option Closing Date,
as applicable, (v) the other representations and warranties of the Offerors set
forth in Section l(a) shall be accurate in all material respects as though
expressly made at and as of the Closing Time or Option Closing Date, as
applicable, and (vi) no stop order suspending the effectiveness of the
Registration
17
Statement shall have been issued and no proceeding for that purpose been
initiated or, to the knowledge of the Offerors, threatened by the Commission. At
the Closing Time, the Underwriter shall have received a certificate of the
Chairman and of the Chief Financial Officer or Controller of the Company, dated
as of the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company, you
shall have received from Deloitte & Touche LLP a letter or letters, dated such
date, in form and substance satisfactory to you, confirming that they are
independent certified public accountants with respect to the Company within the
meaning of the 1933 Act and the published 1933 Act Regulations, and stating in
effect that with respect to the Company:
(i) in their opinion, the consolidated financial statements as of
December 31, 1996 and 1995, and for each of the years in the three year
period ended December 31, 1996 and the related financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their opinions
included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the published 1933
Act Regulations;
(ii) on the basis of procedures (but not an audit in accordance with
generally accepted accounting standards) specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information,
-----------------------------
including a reading of the unaudited interim consolidated financial
statements of the Company for the three-month and nine-month periods ending
September 30, 1996 and September 30, 1997, a reading of the minutes of all
meetings of the Board of Directors of the Company and the Bank and of the
Audit and Executive Committees of the Board of Directors since October 1,
1997, inquiries of certain officials of the Company and its subsidiaries
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited interim consolidated financial statements do not
comply as to form in all material respects with applicable accounting
requirements of the 1933 Act, or are not presented in conformity with
generally accepted accounting principles applied on a basis consistent
with that of the audited financial statements included in the
Prospectus;
(B) at a specified date not more than three days prior to the date of
this Agreement, there was any increase in [total borrowings, real
estate owned, Federal Home Loan Bank advances or allowance for loan
losses] of the Company and its consolidated subsidiaries or any
decrease in total assets, total deposits or stockholders' equity of
the Company and its consolidated subsidiaries or any increase in the
number of outstanding shares of capital stock of the Company and its
consolidated subsidiaries, in each case as compared with amounts shown
in the financial statements at
18
September 30, 1997 included in the Registration Statement, except in
allcases for changes, increases or decreases that the Registration
Statement discloses have occurred or may occur; or
(C) for the period from October 1, 1997 to a specified date not more
than three days prior to the date of this Agreement, there was any
decrease in consolidated net interest income, non-interest income or
[net income per common and common equivalent share or any increase in
the consolidated provision for loan losses], in each case as compared
with a period of comparable length in the preceding year, except in
all cases for increases or decreases that the Registration Statement
discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in clause (ii) above,
they have performed other specified procedures, not constituting an audit,
with respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement (including the Selected
Consolidated Financial Data) (having compared such items with, and have
found such items to be in agreement with, the financial statements of the
Company or general accounting records of the Company, as applicable, which
are subject to the Company's internal accounting controls or other data and
schedules prepared by the Company from such records); and
(e) At the Closing Time, the Underwriter shall have received from
Deloitte & Touche LLP a letter, in form and substance satisfactory to the
Underwriter and dated as of the Closing Time, to the effect that it reaffirms
the statements made in the letter furnished pursuant to Section 5(d), except
that the inquiries specified in Section 5(d) shall be made based upon the latest
available unaudited interim consolidated financial statements and the specified
date referred to shall be a date not more than three days prior to the Closing
Time.
(f) At the Closing Time, counsel for the Underwriter shall have been
furnished with all such documents, certificates and opinions as they may request
for the purpose of enabling them to pass upon the issuance and sale of the
Preferred Securities as contemplated in this Agreement and the matters referred
to in Section 5(c) and in order to evidence the accuracy and completeness of any
of the representations, warranties or statements of the Offerors, the
performance of any of the covenants of the Offerors, or the fulfillment of any
of the conditions herein contained; all proceedings taken by the Company at or
prior to the Closing Time in connection with the authorization, issuance and
sale of the Preferred Securities and the Junior Subordinated Debentures as
contemplated in this Agreement shall be satisfactory in form and substance to
the Underwriter and to counsel for the Underwriter.
(g) Between the date of this Agreement and the Closing Time, (i) no
downgrading shall have occurred in the rating accorded any securities of the
Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
19
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(h) The Company shall have paid, or made arrangements satisfactory to
the Underwriter for the payment of, all such expenses as may be required by
Section 4 hereof.
(i) In the event the Underwriter exercises its option provided in
Section 2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriter to purchase the Option Securities that they have
agreed to purchase shall be subject to the accuracy of the representations and
warranties of the Offerors contained herein and of the statements in any
certificates furnished by the Offerors hereunder as of such Option Closing Date
(as if made on such date), to the performance by the Offerors of their
obligations hereunder and to the receipt by you on the Option Closing Date of:
(1) A certificate, dated the Option Closing Date, of the
Chairman and of the Chief Financial Officer or Controller of the
Company confirming that the certificate delivered on the Closing
Time pursuant to Section 5(c) hereof remains true as of the
Option Closing Date;
(2) The favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇, counsel for the
Company, addressed to you and dated the Option Closing Date, in
form satisfactory to counsel to the Underwriter, relating to the
Option Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof;
(3) The favorable opinion of Morris, Nichols, Arsht &
▇▇▇▇▇▇▇, special Delaware counsel for the Offerors, addressed to
you and dated the Option Closing Date, in form satisfactory to
counsel to the Underwriter, relating to the Option Securities
and otherwise to the same effect as the opinion required by
Section 5(b) hereof;
(4) The favorable opinion of ___________, counsel for the
Indenture Trustee and the Delaware Trustee, addressed to you and
dated the Option Closing Date, in form satisfactory to counsel
to the Underwriter, relating to the Option Securities and
otherwise to the same effect as the opinion required by Section
5(b) hereof;
(5) The favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., dated the Option Closing Date,
relating to the Option Securities and otherwise to the same
effect as the opinion required by Section 5(b) hereof; and
20
(6) A letter from Deloitte & Touche LLP addressed to the
Underwriter and dated the Option Closing Date, in form and
substance satisfactory to the Underwriter and substantially the
same in form and substance as the letter furnished to the
Underwriter pursuant to Section 5(d) hereof.
(j) The Preferred Securities, the Guarantee and the Junior
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration, under
the Blue Sky or securities laws of such jurisdictions as shall have been
reasonably specified by the Underwriter and the offering contemplated by this
Agreement shall have been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriter on 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.
Notwithstanding any such termination, the provisions of Sections 6, 7, 10 and 12
shall remain in effect.
Section 6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless the Underwriter,
officers, directors, employees, agents and counsel of the Underwriter, and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20(a) of the 1934 Act, against any loss, liability,
claim, damage, and expense whatsoever (which shall include, but not be limited
to, amounts incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim or investigation whatsoever
and any and all amounts paid in settlement of any claim or litigation), as and
when incurred, arising out of, based upon or in connection with (i) any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, contained in (A) any
Preliminary Prospectus, the Registration Statement, or the Prospectus (as from
time to time amended and supplemented), or any amendment or supplement thereto
or in any document incorporated by reference therein or required to be delivered
with any Preliminary Prospectus or the Prospectus or (B) in any application or
other document or communication (collectively called an "application") executed
by or on behalf of the Company or based upon written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify the
Preferred Securities under the "blue sky" or securities laws thereof or filed
with the Commission, the NASD or any securities exchange, unless such statement
or omission or alleged statement or omission was made in reliance upon and in
conformity with written information concerning the Underwriter, the Underwriting
Agreement or the compensation of the Underwriter furnished to the Company by or
on behalf of the Underwriter expressly for inclusion in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or in any application, as the case may be, or (ii) any
breach of any representation,
21
warranty, covenant or agreement of the Company contained in the Underwriting
Agreement. For purposes of this section, the term "expense" shall include, but
not be limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by the Underwriter's directors, officers,
employees and counsel according to his or her normal hourly billing rates. The
indemnification provisions shall also extend to all affiliates of the
Underwriter, its respective directors, officers, employees, legal counsel,
agents and controlling persons within the meaning of the federal securities
laws. The foregoing agreement to indemnify shall be in addition to any
liability the Company may otherwise have to the Underwriter or the persons
entitled to the benefit of these indemnification provisions.
(b) The Underwriter agrees to indemnify and hold harmless the
Offerors, their directors, officers who signed the Registration Statement, and
each person, if any, who controls the Offerors within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) above, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or any application in
reliance upon and in conformity with written information about the Underwriter,
the Underwriting Agreement or the compensation of the Underwriter, furnished to
either of the Offerors by the Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or in any application.
(c) An indemnified party shall give prompt notice to the indemnifying
party if any action, suit, proceeding or investigation is commenced in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve the indemnifying party from its obligations
to indemnify hereunder, except to the extent that the indemnifying party has
been prejudiced in any material respect by such failure. If it so elects within
a reasonable time after receipt of such notice, an indemnifying party may assume
the defense of such action, including the employment of counsel satisfactory to
the indemnified parties and payment of all expenses of the indemnified party in
connection with such action. Such indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have promptly employed counsel satisfactory
to such indemnified party or parties or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other indemnified parties that are different from or
additional to those available to one or more of the indemnifying parties, in any
of which events such fees and expenses shall be borne by the indemnifying party
and the indemnifying party shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties. The Company shall be
liable for any settlement of any claim against the Underwriter (or its
directors, officers, employees, affiliates or controlling persons), made with
the Company's written consent, which consent shall not be unreasonably withheld.
The Company
22
shall not, without the written consent of the Underwriter, settle or compromise
any claim against them based upon circumstances giving rise to an
indemnification claim against the Company hereunder unless such settlement or
compromise provides that the Underwriter and the other indemnified parties shall
be unconditionally and irrevocably released from all liability in respect to
such claim.
(d) In order to provide for just and equitable contribution, if a
claim for indemnification pursuant to these indemnification provisions is made
but it is found in a final judgment by a court that such indemnification may not
be enforced in such case, even though the express provisions hereof provide for
indemnification in such case, then the Company, on the one hand, and the
Underwriter, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriter, on the
other hand, from the underwriting, and also the relative fault of the Company,
on the one hand, and the Underwriter, on the other hand, in connection with the
statements, acts or omissions which resulted in such loss, liability, claim,
damage and expense, and any other relevant equitable considerations shall also
be considered. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not also found
liable for such fraudulent misrepresentation or omission. Notwithstanding the
foregoing, the Underwriter shall not be obligated to contribute any amount
hereunder that exceeds the amount of the underwriting commission paid by the
Company to the Underwriter with respect to the Preferred Securities purchased by
the Underwriter.
(e) The indemnity and contribution agreements contained herein are in
addition to any liability which the Company may otherwise have to the
Underwriter.
(f) Neither termination nor completion of the engagement of the
Underwriter nor any investigation made by or on behalf of the Underwriter shall
affect the indemnification obligations of the Company or the Underwriter
hereunder, which shall remain and continue to be operative and in full force and
effect.
Section 7. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. The representations, warranties, indemnities, agreements and other
--------
statements of the Offerors or its officers or trustees set forth in or made
pursuant to this Agreement will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Offerors or the
Underwriter or any controlling person and will survive delivery of and payment
for the Preferred Securities.
Section 8. Offering by the Underwriter. The Trust and the Company
---------------------------
are advised by the Underwriter that the Underwriter proposes to make a public
offering of the Preferred Securities, on the terms and conditions set forth in
the Registration Statement from time to time as and when the Underwriter deems
advisable after the Registration Statement becomes effective. Because the NASD
is expected to view the Preferred Securities as interests in a direct
participation program, the
23
offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's Conduct Rules.
Section 9. Termination of Agreement.
------------------------
(a) You may terminate this Agreement, by notice to the Offerors, at
any time at or prior to the Closing Time (i) if there has been, since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the 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 outbreak or escalation of existing
hostilities or other national or international calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the Underwriter's reasonable judgment, impracticable to market the Preferred
Securities or enforce contracts for the sale of the Preferred Securities, or
(iii) if trading in any securities of the Company has been suspended by the
Commission or the National Association of Securities Dealers, Inc., or if
trading generally on the New York Stock Exchange or in the over-the-counter
market has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by such
exchange or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority with appropriate jurisdiction
over such matters, or (iv) if a banking moratorium has been declared by either
federal or Florida authorities, or (v) if there shall have been such material
and substantial change in the market for securities in general or in political,
financial or economic conditions as in your reasonable judgment makes it
inadvisable to proceed with the Offering, sale and delivery of the Preferred
Securities on the terms contemplated by the Prospectus, or (vi) if you
reasonably determine (which determination shall be in good faith) that there has
not been satisfactory disclosure of all relevant financial information relating
to the Offerors in the Offerors' disclosure documents and that the sale of the
Preferred Securities is inadvisable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6 and 7 shall remain in effect.
Section 10. Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices shall be addressed as follows:
If to the Underwriter:
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
24
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A.
Suite 2200
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Company or the Trust:
Fidelity Bankshares, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief Executive
Officer
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Section 11. Parties. This Agreement is made solely for the benefit
-------
of the Underwriter, and the officers, directors, employees, agents and counsel
of the Underwriter specified in Section 6, the Trust and the Company and, to the
extent expressed, any person controlling the Trust, the Company or the
Underwriter, and the directors of the Company, or trustees of the Trust, their
respective officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include any purchaser, as such
purchaser, from the Underwriter of the Preferred Securities.
Section 12. Arbitration. Any claims, controversies, demands,
-----------
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in West Palm Beach, Florida before one or three arbitrators, each of
whom shall be knowledgeable in the field of securities law and investment
banking. Such arbitration shall otherwise be conducted in accordance with the
rules then obtaining of the American Arbitration Association. The parties hereto
agree to share equally the responsibility for all fees of the arbitrators, abide
by any decision rendered as final and binding and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or non-
jury trial. The parties hereto specifically agree that neither party may appeal
or subject the award or decision of any such arbitrator to appeal or review in
any court of law or in equity or in any other tribunal, arbitration
25
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 13. Governing Law and Time. This Agreement shall be governed
----------------------
by the laws of the State of New Jersey. Specified times of the day refer to New
York City time.
Section 14. Counterparts. This Agreement may be executed in one or
------------
more counterparts, and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
Very truly yours,
FIDELITY CAPITAL TRUST I
By:
------------------------------------
Name:
Title: Trustee
FIDELITY BANKSHARES, INC.
By:
------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇, ▇▇▇▇ & CO., INC.
By:
-----------------------------
Name:
Title:
27
EXHIBIT A
---------
FIDELITY CAPITAL TRUST I
(a Delaware business trust)
2,500,000 Preferred Securities
___% Cumulative Trust Preferred Securities
(Liquidation Amount $10 per Preferred Security)
PRICE DETERMINATION AGREEMENT
-----------------------------
___________, 1997
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof
(the "Underwriting Agreement"), among Fidelity Capital Trust I, a Delaware
business trust (the "Trust"), Fidelity Bankshares, Inc. (the "Company" and
together with the Trust, the "Offerors") and the ▇▇▇▇, ▇▇▇▇ & Co., Inc. (the
"Underwriter"). The Underwriting Agreement provides for the purchase by the
Underwriter from the Trust, subject to the terms and conditions set forth
therein, of 2,500,000 of the ___% Cumulative Trust Preferred Securities of the
Trust (the "Preferred Securities"), subject to a 375,000 adjustment (to cover
over-allotments, if any). This Agreement is the Price Determination Agreement
referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors
agree with the Underwriter as follows:
1. The public offering price per Preferred Security shall be $10.
1
2. The purchase price for the Preferred Securities to be paid by
the Underwriter shall be $10 per Preferred Security.
3. The commission per Preferred Security to be paid by the Company to
the Underwriter for its commitment hereunder shall be $___________ per Preferred
Security.
4. The distribution rate on the Preferred Securities shall
be ___% per annum.
The Offerors represent and warrant to the Underwriter that the
representations and warranties of the Offerors set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of
New Jersey.
2
If the foregoing is in accordance with the understanding of the
Underwriter of the agreement between the Underwriter and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriter and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
FIDELITY CAPITAL TRUST I
By:
--------------------------------
Name:
Title: Trustee
FIDELITY BANKSHARES, INC.
By:
--------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇, ▇▇▇▇ & CO., INC.
By:
------------------------------
Name:
Title:
3
EXHIBIT B
---------
The opinion of special counsel to the Company to be delivered pursuant to
Section 5(b)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, with requisite corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement and is registered as a savings and
loan holding company under the Home Owner's Loan Act of 1933, as amended. Each
of the Company's subsidiaries is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation, with
requisite corporate power and authority to own, lease and operate its respective
properties and conduct its business as described in the Registration Statement,
except where the failure to be in good standing would not have a material
adverse effect on the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its subsidiaries,
considered as one enterprise. The Bank is chartered under the laws of the
United States to transact the business of a federal savings bank and its Charter
is in full force and effect with the Office of Thrift Supervision.
2. The Company and each subsidiary are duly qualified to transact business as
foreign corporations under the corporation laws of each jurisdiction in which
the Company or such subsidiary, as the case may be, owns or leases property of a
nature, has an office, or transacts business of a type, that would make such
qualification necessary, except where the failure to so qualify would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
3. The deposit accounts of the Bank are insured by the Savings Association
Insurance Fund of the FDIC up to the maximum amount allowable by law and, to
such counsel's knowledge, no proceedings for the termination or revocation of
such membership or insurance are pending or threatened.
4. All of the issued and outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued and are
fully paid and nonassessable and, to such counsel's knowledge, are owned by the
Company or the Bank, as the case may be, free and clear of any security
interests, liens, pledges, claims or other encumbrances, except where the
failure to own such shares free and clear of any security interests, liens,
pledges, claims or other encumbrances would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
5. The authorized and outstanding capital stock of the Company at September
30, 1997 is as set forth in the Prospectus under the heading "Capitalization".
1
6. The Company and the Trust each has full corporate power and authority to
execute, deliver and perform the Underwriting Agreement and to issue, sell and
deliver the Preferred Securities to be sold by it to the Underwriter as provided
therein; the Underwriting Agreement has been duly authorized, executed and
delivered by the Company and the Trust, and constitutes a legal, valid, and
binding obligation of each of the Company and the Trust and is enforceable
against each of the Company and the Trust in accordance with its terms, except
as enforceability of the Underwriting Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, and by equitable principles limiting the right to specific
performance or other equitable relief and except as the obligations of the
Company under the indemnification and contribution provisions of Section 6 of
the Underwriting Agreement may be limited by laws or unenforceable as against
public policy, as to which no opinion is expressed, and an implied covenant of
good faith and fair dealing.
7. The Trust Agreement has been duly authorized, executed and delivered by the
Company, and is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally, and by
general equity principles (whether considered in a proceeding in equity or at
law).
8. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally, and by
general equity principles (whether considered in a proceeding in equity or at
law).
9. The Expense Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally and by
general equity principles (whether considered in a proceeding in equity or at
law).
10. The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act, and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally, and by general equity
principles (whether considered in a proceeding in equity or at law).
11. The Subordinated Debentures have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance with the
Indenture and delivered and paid for in accordance with the Debenture
Subscription Agreement, will be valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy,
2
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and by general equity principles (whether
considered in a proceeding in equity or at law).
12. Neither the Company nor the Trust is an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
13. The statements set forth in the Registration Statement under the captions
"Description of Preferred Securities," "Description of Junior Subordinated
Debentures," "Description of Guarantee" and "Relationship Among the Preferred
Securities, the Junior Subordinated Debentures and the Guarantee," insofar as
they purport to describe the provisions of the laws referred to therein, fairly
summarize the legal matters described therein.
14. The statements of law or legal conclusions and opinions set forth in the
Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
15. The Registration Statement was declared effective under the 1933 Act as of
the date and time specified in such order, any required filing of the Prospectus
or any supplement thereto pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b) and, to such counsel's
knowledge and information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings
therefor have been initiated or threatened by the Commission.
16. The Registration Statement (including the Rule 430A Information, if
applicable) and the Prospectus and any amendment or supplement thereto (except
for the financial statements and other financial and statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion),
as of their respective effective or issue dates, comply or complied as to form
in all material respects to the applicable requirements of the 1933 Act and the
1933 Act Regulations.
17. The documents incorporated by reference in the Prospectus (except for the
financial statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel expresses no opinion, and except to
the extent that any statement therein is modified or superseded in the
Prospectus), as of the dates they were filed with the Commission, complied as to
form in all material respects to the applicable requirements of the 1934 Act and
the 1934 Act Regulations.
18. Such counsel knows of no legal or governmental proceedings pending to which
the Company or any subsidiary is a party or of which any property of the Company
or any subsidiary is the subject that are required to be disclosed in the
Registration Statement or that would affect the consummation of the transactions
contemplated in the Underwriting Agreement or the Indenture; and such counsel
knows of no such proceedings that are threatened or contemplated by governmental
authorities or threatened by others.
3
19. Such counsel knows of no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described in the Registration
Statement or to be filed as exhibits thereto other than those described therein
or filed or incorporated by reference as exhibits thereto, and such instruments
as are summarized in the Registration Statement are fairly summarized in all
material respects.
20. No approval, authorization, consent, registration, qualification or other
order of any public board or body is required in connection with the execution
and delivery of the Underwriting Agreement, the Trust Agreement, the Guarantee
Agreement, the Expense Agreement and the Indenture or the issuance and sale of
the Preferred Securities or the consummation by the Company of the other
transactions contemplated by the Underwriting Agreement, the Trust Agreement,
the Guarantee Agreement, the Expense Agreement or the Indenture, except such as
have been obtained under the 1933 Act, the 1934 Act and the Trust Indenture Act
or such as may be required under the blue sky or securities laws of various
states in connection with the offering and sale of the Preferred Securities.
21. To such counsel's knowledge, the Company and each of its subsidiaries,
including the Bank, each has all material licenses, permits and other
governmental authorizations currently required for the conduct of its business
as presently conducted.
22. The execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Guarantee Agreement, the Expense Agreement and the Indenture, the
issue and sale of the Preferred Securities and the Subordinated Debentures, the
compliance by the Company with the provisions of the Preferred Securities, the
Subordinated Debentures, the Indenture, the Guarantee Agreement, the Expense
Agreement and the Underwriting Agreement and the consummation of the
transactions therein contemplated will not conflict with or constitute a breach
of, or default under, the certificate of incorporation or by-laws of the Company
or any subsidiary or a breach or default under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument known to such counsel
to which either the Company or any subsidiary is a party or by which any of them
or any of their respective properties may be bound except for such breaches as
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries considered as one enterprise, nor will such action
result in a violation on the part of the Company or any subsidiary of any
applicable law or regulation or of any administrative, regulatory or court
decree known to such counsel.
23. Counsel will supplementally provide a written statement that such counsel
has participated in the preparation of the Registration Statement and Prospectus
and has reviewed the documents incorporated by reference in the Prospectus and
no facts have come to the attention of such counsel to lead it to believe (a)
that the Registration Statement (including the Rule 430A Information, if
applicable) or any amendment thereto (except for the financial statements and
other financial or statistical data included therein or omitted therefrom, as to
which such counsel need express no opinion), at the time the Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein
4
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or (b) that the Prospectus or any amendment
or supplement thereto (except for the financial statements and other financial
or statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), at the time the Prospectus was issued, or at
the Closing Time, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading or (c) that the documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel expresses no opinion, and except to the extent that any statement
therein is modified or superceded in the Prospectus), as of the dates they were
filed with the Commission, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
5
EXHIBIT C
---------
The opinion of counsel, as special Delaware counsel to the Company and the Trust
to be delivered pursuant to Section 5(b)(ii) of the Underwriting Agreement shall
be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good standing as
a business trust under the Delaware Business Trust Act, 12 Del. C. Section 3801
et seq. (the "Delaware Act"), and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of the Trust
as a business trust have been made.
2. Under the Delaware Act and the Trust Agreement, the Trust has the trust
power and authority to own its property and to conduct its business, all as
described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Property Trustee and the Delaware Trustee, and is enforceable
against the Company and the Trustees, in accordance with its terms.
4. Under the Delaware Act and the Trust Agreement, the Trust has the trust
power and authority to execute and deliver, and to perform its obligations
under, the Underwriting Agreement and to issue and perform its obligations under
the Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and delivery
by the Trust of the Underwriting Agreement, and the performance by the Trust of
its obligations thereunder, have been duly authorized by all necessary trust
action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust Agreement
and are duly and validly issued and, when issued against payment therefor as set
forth in the Underwriting Agreement will be, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and are entitled to
the benefits of the Trust Agreement. The Holders, as beneficial owners of the
Trust, will be entitled to the same limitations of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Holders may be
obligated pursuant to the Trust Agreement, (i) to provide indemnity and/or
security in connection with and pay taxes or governmental charges arising from
transfers or exchanges of Preferred Securities Certificates and the issuance of
replacement Preferred Securities Certificates, and (ii) to provide security or
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
7. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and Common Securities is not subject to preemptive rights.
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8. The Common Securities have been duly authorized by the Trust Agreement and
are duly and validly issued undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Trust Agreement.
9. The issuance and sale by the Trust of the Preferred Securities and Common
Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
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EXHIBIT D
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The opinion of counsel to Trust Company and Delaware Trustee to be delivered
pursuant to Section 5(b)(iii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of New York.
2. The Delaware Trustee is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of Delaware.
3. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of the Indenture.
4. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
5. The Property Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
6. The Delaware Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
7. Each of the Indenture and the Guarantee Agreement has been duly executed and
delivered by the Indenture Trustee and the Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the Indenture Trustee and
the Guarantee Trustee, respectively, enforceable against the Indenture Trustee
and the Guarantee Trustee, respectively, in accordance with its respective
terms, except that certain payment obligations may be enforceable solely against
the assets of the Trust and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a proceeding
in equity or at law), and by the affect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
8. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
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